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Book.^_ 1361 



COPYRIGHT DEPOSIT 






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BEECHER'S 


CONSTITUTION 

AND 

CIVIL GOVERNMENT 

of the 

UNITED STATES. 

^ by 

WM. J. BEECHER, LL. D. 

A MEMBER OF THE MONTANA BAR. 



WM. J. Beechbr, Publisher, 
Tivingston, Mont. 






THE LIBRARY OF 
CONGRESS, 
Two Copits Received 

SEP. 3 1901 

COPVRIGHT ENTRY 

cLjg^. f, 

CLASS XXc. N«. 
COPY B. 


Entered according to the Act of Congress in thej^ear 1901, by 
WM. J. BEECHER, 

in the office of the Librarian of Congress, at Washington. 


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'PIONEER PRESS CO., 
PRINTERS AND BINDERS, 
ST. PAUL, MINN. 





PREFACE. 


In introducing this treatise on the Constitution and Civil 
Government of the United States but few words are neces¬ 
sary. Realizing that for those not versed in the peculiar 
language of the law, and especially for students of tender 
years, it is extremely difficult to study the hard, dry facts 
of a work of this nature, it has been our constant aim to 
make same as clear and simple as possible, and to avoid all 
idioms having a purely technical meaning. The greatest 
care has also been taken in reciting facts accurately; and 
where a question is still unsettled or in dispute, we have 
endeavored to answer same in the manner we believe it 
would be answered by the highest legal authority in case 
it should come up for final determination, at the same time 
giving our reasons therefor. Then, too, we have done our 
utmost to make this work interesting, and yet not include 
therein any matter that could with propriety be omitted. 
Experience has taught that by doing thus only can the con¬ 
centrated attention of most students be commanded and 
the great end of indelibly impressing upon their minds facts 
dry and otherwise uninteresting attained. And if we have 
succeeded in this respect we will feel fully compensated for 
our trouble. 

In conclusion, we note with pleasure the great and grow¬ 
ing interest taken by all classes in the study of the funda¬ 
mental law of the nation. This in our humble opinion is 
the heralder of a still brighter future for the cradle of liberty 
and the mother of political and religious freedom; and this 
for the reason that as our people the more and more become 
acquainted with the functions and duties of a free govern¬ 
ment they will be in a better and still better position to 
superintend their proper administering, and thus ever se¬ 
cure to themselves a greater measure of that personal lil)- 
erty for the attainment of which so much blood has been 
spilled. -VV. J. B. 

Livingston, Montana, June 24th, 1901. 

iii 



CONTENTS. 


Page. 

Preliminary . ^ 

Preamble, or Enacting Clause. lo 

ARTICLE I.—Legislative Department. 13 

Section i.—C ongress.. 13 

Section 2.—House of Representatives... ib 

Clause I.—Composition of House of Representa* 

tives . ib 

Clause 2.—QuaLfications of Representatives. 18 

Clause 3.—Apportionment of Representatives and 

Direct Taxes. 20 

Clause 4.—iManner of Filling Vacancies. 23 

Clause 5.—Power of Impeachment. 24 

Section 3.—The Senate.•.. 25 

Clause I.—Composition of the Senate. 25 

Clause 2.—Classification of Senators. 28 

Clause 3.—Qualifications of Senators. 30 

Clause 4.—Presiding Officer of Senate. 31 

Clause 5.—Other Officers of Senate. 32 

Clause 6.—Trial of Impeachments. .. 32 

Section 4.— Elections and Meetings. 35 

Clause I.—Time and Manner of Elections. 35 

Clause 2.—Time Congress shall Meet. 36 

Section 5.—Separate Powers and Duties. 37 

Clause I.—Quorum . 37 

Clause 2.—Rules of Each House. 39 

Clause 3.—Records and Journals of Congress. 39 

Clause 4.—Adjournment . 41 

iv 




























CONTENTS. 


V 


Page. 

Section 6.—Members . 42 

Clause I.—Compensation and Attendance of Mem¬ 
bers . 42 

Clause 2.—Restrictions on Congressmen. 44 

Section 7.—Law Making. 45 

Clause I.—Appropriation Bills. 45 

Clause 2.—How a Bill Becomes Law. 46 

Clause 3.—Joint Resolutions. 48 

vSection 8.—Powers of Congress. 49 

Clause I.—Taxation . 51 

Clause 2.—Power to Borrow. 54 

Clause 3.—Power to Regulate Commerce. 55 

Clause 4.—Naturalization and Bankruptcy. 56 

Clause 5.—Coinage, Weights and Measures. 60 

Clause 6.—Counterfeiting. 61 

Clause 7.—Post Offices and Post Roads. 62 

Clause 8.—Copyrights and Patents. 63 

Clause 9.—Federal Courts. 65 

Clause 10.—Piracies, Punishment of. 66 

Clause II.—Power to Declare War. 68 

Clause 12.—Power to Maintain Armies. 70 

Clause 13.—The Navy. 71 

Clause 14.—Army and Navy Regulations. 72 

Clause 15.—The Militia. 73 

Clause 16.—Organization of the Militia. 75 

Clause 17.—Power to Legislate Exclusively. 76 

Clause 18.—Incidental or Implied Powers. 79 

vSection 9.—Prohibitions on Congress. 80 

Clause I.—The Slave Trade. 80 

Clause 2.—Writ of Habeas Corpus. 81 

Clause 3.—Bills of Attainder and Ex Post Facto 

Laws . 82 

Clause 4.—Levying of Direct Taxes. 84 

Clause 5—Duties on Exports. 84 

Clause 6.—Commercial Restrictions. 86 

Clause 7.—Appropriations and Accounts of Public 

Funds . 8b 

Clause 8.—Titles of Nobility. 87 





































VI 


CONTENTS. 


Page. 

Section io.—P rohibitions on the States. ^9 

Clause I.—Absolute Prohibitions. ^9 

Clause 2.—Conditional Prohibitions. 9 i 

article II.—The Executive Department. 94 

Section i.—O rganization. 9 ^ 

Clause I.—Vestment of Executive Power. 96 

Clause 2.—Presidential Electors. 97 

Clause 3.—Election of President and Vice Presi¬ 
dent—XIL Amendment. 100 

Clause 4.—Time of Elections. 104 

Clause 5.—Qualifications of President and Vice 

President . 

Clause 6.—Vacancies . 

Clause 7.—Salary of President. 109 

Clause 8.—Oath of* Office. no 

Section 2.—Powers and Duties of President. m 

Clause I.—Sole Powers of President. ni 

Clause 2.—Powers Shared Jointly with Senate. 117 

Clause 3.—Power of Appointment. 122 

Section 3.—Other Duties of President. 123 

Section 4.—Impeachment of Civil Officers. 127 

ARTICLE III.—The Judiciary Department. 128 

Section i.—O rganization . 129 

Section 2.—Jurisdiction of Courts. 131 

Clause I.—Extent of Jurisdiction. 131 

Clause 2.—Jurisdiction of Supreme Court. 138 

Clause 3.—Trial of Criminal Cases. 139 

Section 3.—Treason . 140 

Clause I.—Definition of Treason. 140 

Clause 2.—Punishment of Treason. 142 

ARTICLE IV.—Relations of the States. 143 

Section i.—S tate Records. 143 

Section 2.—Relations of States to the Inhabitants of 

Other States. 145 

Clause I.—Privileges of Citizens of Each State. 145 



































CONTENTS. vii 

Page. 

Clause 2.—Fugitive Criminals. 146 

Clause 3—Fugitive Slaves. 147 

Section 3.—New States and Territories. 147 

Clause I. —Admission of New States. 147 

Clause 2.—Territories . 150 

Section 4.—Federal Guaranties to the States. 152 

ARTICLE V.—Amendments to the Constitution. 154 

ARTICLE VI.—Miscellaneous . 156 

Clause I.—Prior Debts and Engagements. 156 

Clause 2.—Supremacy of the Constitution. 157 

Clause 3.—Oath of Office. 158 

ARTICLE VII.—Ratification of the Constitution. 159 

Amendments to the Constitution. 161 

AMENDIMENTS I-X.—Bill of Rights.162-178 

Article I.—Freedom of Religion, of Speech and 

of Assembly. 162 

Article II.—Right to Bear Arms. 164 

Article III.—Quartering Soldiers. 165 

Article IV.—Searches and Seizures. 166 

Article V.—Security to Life, Liberty and Prop¬ 
erty . 167 

Article VI.—Trial Rights of Accused Persons... ^ 171 

Article VII.—Jury Trial in Common Law Suits... 174 

Article VIII.—Excessive Bail, etc.. Forbidden. 176 

Article IX.—Personal Rights not to be Con¬ 
strued vStrictly. 176 

Article X.—Powers Reserved by the People.... 177 

AMENDMENTS XI. and XII.—Miscellaneous.179, 180 

Article XI.—Suing of States in U. S. Courts. 179 

Article XII.—Election of President. 180 

AMENDMENTS XITI., XIV. and XV.—Abolition 'of 

Slavery. 181-187 

Article XIII.—Abolition of Slavery. 181 

Article XIV.—Reconstruction Provisions. 181 

Section i.—Citizenship and Its Privileges. 181 

Section 2.—Apportionment of Representatives. 183 




























CONTENTS. 


viii 


Page. 

Section 3.—Disabilities of Rebels. 184 

Section 4.—Status of Public and Rebel Debt... 186 

vSection 5.—Congressional Power to Enforce 

this Article. 186 

Article XV.—Equal Suffrage. 187 

Appendix . 189 






BEBCHER’S 

CONSTITUTION s CIVIL GOVERNMENT 

OF 

THE UNITED STATES. 


PRELIMINARY. 

In commencing the study of the science of government 
there are two questions that naturally arise in bold relief to 
the mind of the student. The first of these is, '‘What is 
government?’’ The second is, “Why are governments insti¬ 
tuted among men?” Numerous and various answers may 
be given to the former question, but in the sense herein used 
the term government may be defined as “that form of funda¬ 
mental rules by which the members of a body politic regu¬ 
late their social actions, and the administration of public 
affairs, according to established constitutions, laws and 
usagesor it may be defined as the right or power to con¬ 
trol, to direct and to exercise authority over human-kind, 
or such a portion thereof as have associated themselves to¬ 
gether for the purpose of mutual protection and advance¬ 
ment into a certain designated and defined community or 
body politic. At the present writing there are, and for a 
period of time “whereof the memory of man runneth not to 
the contrary” there have been, many forms of government 
in operation among the races of men, chief among which in 



2 


CIVIL, GOVERNMENT OE 


power and influence may be classed monarchies, both lim¬ 
ited and absolute, and democracies, both pure and represen¬ 
tative. The government of our own nation, and of which we 
are shortly to study, is, in theory at least, a representative 
democracy, or, in other words, a republic. This form of 
government we fondly believe to be the most consistent with 
the common rights of man and with the ever onward course 
of progress and civilization. In a republic all the citizens, 
as such, are equal before the established constitution and 
laws, and no person can rightfully exercise authority. over 
another but by virtue of power constitutionally or otherwise 
given by the whole community, which authority, when exer¬ 
cised, is in theory and generally in effect the act of the entire 
community. Its basic principle is that in the people or 
members forming it reposes the sovereignty, and that this 
sovereignty is exercised by them through their accredited 
representatives, it being impracticable, if not quite impossi¬ 
ble, for all the people in a great and populous community or 
body politic to meet together and exercise their sovereignty 
in person. 

To the second question, “Why are governments instituted 
among men ?” the most fitting answer, as well as the most 
appropriate, can be found in the preamble of the Constitu¬ 
tion of the United States itself. From it we learn that gov¬ 
ernments are instituted for the purpose of establishing jus¬ 
tice, insuring domestic tranquility, organizing society to 
carry on public works, providing for the common defense 
and promoting the general welfare and happiness of the 
people. It will be readily recognized as a self-evident truth 
that in order to protect the weak from the strong and from 
the selfish, in order to preserve the sanctity of the home and 
the ties and relations emanating therefrom, and in order to 
apprehend the common enemies of mankind and bring them 
to justice, it was necessary that some artificial power be 
created which could accomplish these ends. Hence, the 
establishment of governments among men. The whole aim 


THK UNITED states. 


3 


of government is to protect man from his kind, and to fur¬ 
ther his moral and pecuniary welfare. To accomplish this 
desirable end the most effectually, the voices and the ex¬ 
perience of the ages have taught that the government estab¬ 
lished must be one in which the people, and not one man or 
a body of men, are the sovereigns. A government in kind 
other than this is generally tyrannical, unjust and often ca¬ 
pricious. Such proved to be the case with the monarchial 
form of government which held sway over the thirteen orig¬ 
inal colonies prior to the commencement of the war of the 
Revolution, and on the ruins of which, after many weary 
years of bloodshed, rapine and murder, our own glorious 
form of government was builded. 

It is assumed that the student is entirely familiar with the 
immediate causes of the Revolutionary War, through the 
medium of which the old original thirteen colonies were 
freed from the tyrannous domination of the mother country, 
and also with the ideas and longings which naturally grew 
up in the hearts of the people thereof and made them look 
on any form of government which did not originate with 
and evolve on themselves with hatred, aversion and distrust. 
Hence, we shall only record here the various steps which 
were taken from the time the inhabitants of these colonies 
first drank to the dregs the inspiring nectar of freedom, of 
liberty and of the equality of man, to the date of the adop¬ 
tion and ratification of the Constitution of the United States. 

At the time the colonies threw off the yoke of the mother 
country in open re])ellion, and ])oldly launched themselves 
on the sea of fate, they were, in effect, thirteen separate and 
distinct nations, each complete within itself, and having but 
few and ufiimportant political relations with each other. 
The only ties that held them together and caused them to 
work in concert were the loose and flimsy ties of a common 
kindred, a common olqect and a common fear. But to ac¬ 
complish even this effectually it at once became apparent 


4 


CiVIIv government oe 


that some sort of a central governing institution must be 
established to which each of the colonies could send a cer¬ 
tain number of delegates to look after her individual inter¬ 
ests, and enable the entire thirteen to act in harmony and 
wage a systematic war against the common enemy. Hence, 
on the 5th day of September, 1774, at the city of Philadel¬ 
phia, these delegates met together in accordance with the 
original object and organized themselves into a body which 
has since been known and designated as the Continental 
Congress. From the date of the convening of this body 
until the adoption of the Articles of Confederation, hereinafter 
more particularli^ mentioned, on the ist day of March, 1781, 
it was “clothed with undefined powers for the general 
good,” in theory, but in reality it had no power or authority 
to enforce the observance of its deliberations, except such 
power as the passive or common consent of a majority of 
each of the colonies enabled it to exercise.. Had it not been 
for the fact that the delegates forming it were exceptionally 
wise and good men, and that their acts were reasonable and 
justified by the stern necessity of the hour, the congress 
must surely have broken up in disorder, and thus spread 
confusion and the rankling seeds of jealousy and distrust 
throughout the entire thirteen colonies. But luckily such 
was not the case. Instead, however, out of this small begin¬ 
ning gradually grew up the collosal structural work of the 
government of a mighty nation, which exercises not passive 
but actual power. 

Thus have we a brief outline of the reason or reasons for 
the calling of the Continental Congress and of the authority 
it exercised. But during its existence, and prior to the 
adoption of the Articles of Confederation, a very important 
occurrence took place which we cannot allow to pass with¬ 
out special notice. This was the adoption of that immortal 
document, the Declaration of Independence, on the 4th day 
of July, 1776. From the date of its adoption really can be 


the: united states. 


5 

reckoned the birth of the nation. When the colonists first 
took up arms against England they did not dream of sep¬ 
arating themselves permanently from the domination of the 
mother country. Their only object was to secure the re¬ 
dress of certain grievances and the granting of certain privi¬ 
leges which were denied them. But as if by magic there 
suddenly grew up in the hearts of the people, imperceptibly, 
perhaps, at first, but well-defined later on, an unquenchable 
desire to rid themselves forever from the domination of their 
foreign oppressor. In accordance with this desire the Con¬ 
tinental Congress, on June nth, 1776, appointed a commit¬ 
tee to draft the document which made our forefathers free. 
On this committee, and forming part of it, were three well- 
knowm characters in American history, Thomas Jefferson, 
Benjamin Franklin and John Adams. The document itself, 
with the exception of a few words of correction, was the 
work of Mr. Jefferson, and is characteristic of the man, 
lireathing freedom at every pore. The student will find a 
copy of this brilliant and remarkable document in the appen¬ 
dix of this work, and we strongly recommend that it be 
studied carefully in this connection and given much thought, 
for its eternal principles are those which should permeate 
the very souls of the young manhood and young woman¬ 
hood of the nation, and thus continually add new and fresh 
fuel to liberty’s fire, and cause her thousand beacon lights 
of hope to burn ever more brightly. 

On the same date that a committee was appointed to 
draft the Declaration of Independence one was also ap¬ 
pointed to formulate or frame a plan on which to form a 
government having more power and authority than the 
Continental Congress, as it was felt by everybody, and 
especially by the members of this Congress, that such a 
government was absolutely essential to secure to the people 
the protection requisite to their needs, as well as the bless¬ 
ings of a liberty which is guarded by wise and just laws. 


6 


civil, gove:rnme:nt or 


This committee reported the result of its deliberations some¬ 
what over a month later. The report, after being slightly 
modified, was agreed to by the Continental Congress on the 
15th day of November, 1777, whereupon it was submitted 
to the several colonies to be ratified by their legislatures. 
This report, thus agreed upon and submitted, was known 
as the Articles of Confederation. On March ist, 1781, 
Maryland, the last of the thirteen colonies to authorize her 
delegates in Congress to sign the articles, instructed them to 
do so, after which event they went into full force and effect. 

The government organized under the Articles of Confed¬ 
eration, was much weaker and cjuite different from that as 
organized under the Constitution, as we shall see later on. 
It was merely a loose Confederation of States, each of which 
still retained its own independent sovereignty. Practically, 
it was nothing more than a friendly agreement entered into 
between the states to recognize the authority of the central 
government, but which authority each of them could reject 
or disobey at any time it was so minded. These articles made 
no provision for any other l^ranch of government than that 
of Congress itself, and it was to consist of but one house. 
Its members were paid by their respective states, and were 
elected for one year, but could be recalled at any time. 
Each state was allowed from two to seven members, accord¬ 
ing to its population, but it only had one vote in the con¬ 
gress. This Congress had power to “treat with foreign 
countries, to send and receive embassadors, to determine 
peace and war.” It could also borrow money “on the credit 
of the United Statesfix the standard of weights and meas¬ 
ures, and of the fineness of coin ; establish and regulate post- 
offices and post roads; ascertain and appropriate an amount 
of money sufficient to defray the expenses of gov¬ 
ernment ; decide as to the size of the standing army, and re¬ 
quest each state to furnish the number of men for such pur¬ 
pose required of it; and to appoint a committee consisting 


THE UNITED states. 


7 


of one member from each state to sit during the vacations 
of Congress and transact the executive business. It was 
also a court of last resort in the settlement of all difficulties 
arising between the states. 

In addition to conferring these rights on the Congress, 
the Articles of Confederation also denied to the states cer¬ 
tain powers inherent in them. Thus, they were forbidden 
to enter into any treaty with each other or with a foreign 
nation, or to engage in war except upon the consent of Con¬ 
gress first had and received. Neither were they allowed to 
keep vessels of war or a standing army in times of peace, un¬ 
less same was authorized by Congress. 

The palpable and glaring defects in these articles were 
not long in presenting themselves. Under them Congress 
had power to declare war, and apportion to each state the 
number of men it should furnish, but it could not compel 
them to raise a single troop; it had power to borrow money 
on the faith of the United States, but it had no power to pay 
a dollar back; it had power to make and conclude treaties 
with foreign nations, but it had no power to enforce their 
observance; it had power to coin money, but none to pur¬ 
chase a pennyweight of bullion; it had power to determine 
and appropriate money for the defraying of the expenses 
of government, but could not raise a single dollar. The 
natural result of this utter impotency and weakness of the 
confederate government was humiliating, to say the least. 
Its entire inability to enforce the observance of the treaties 
it had concluded with foreign nations brought upon it alike 
the scorn and ridicule of its enemies and the dissatisfaction 
and distrust of its friends. Each state regulated its own 
commerce, and hence for the want of a uniform system of 
duties and imposts and of consistent commercial regulations 
in the different states, the commerce of the entire country 
was severely prostrated, if not quite ruined. The inability 
to secure the payment of its obligations destroyed its stand- 


8 


civil, govi:rnment oe 


ing among the nations of the world. The value of the 
money it issued was scarcely nominal. Petty jealousies 
were arising between the states on every hand, and even 
the existence of the very government itself was in some parts 
of the country threatened by open rebellion. 

While matters were in this deplorable condition, and the 
government of the Union itself seemed about to collapse 
and dissolve under its own weight, the Congress seemingly 
awoke from the lethargic, degraded and demoralized condi¬ 
tion into which it had fallen, and, on Feb. 21st, 1787, upon 
the suggestion of a commission appointed for this purpose 
by five of the states, passed a resolution recommending that 
a convention of delegates be appointed by the several states, 
to meet in Philadelphia on the second Monday in May, 1787, 
“for the sole and express purpose of revising the Articles of 
Confederation.’^ In answer to this recommendation, with 
the single exception of Rhode Island, delegates from all the 
states met at the appointed time and place, and by May 25th 
the convention had organized, with George Washington as 
its chairman, and began to put into execution the object that 
gave it birth. It did not take the convention long, however, 
to discover that it would be useless to attempt to amend 
the Articles of Confederation. They were so palpably and 
radically defective that the promulgation of an entirely new 
plan of government—one which provided for the establish¬ 
ment of a much stronger central power—was necessary in 
order to preserve the Union from utter and speedy dissolu¬ 
tion. Hence, it was determined to discard the old articles 
and form an entirely new document by means of which their 
mistakes would be cured and their deficiencies supplied. 
On the 17th of September, 1787, this document was com¬ 
pleted, engrossed and signed by all the members of the con¬ 
vention, save three. It was then, together with a resolution 
stating how the proposed government should be put in oper¬ 
ation and an explanatory letter, transmitted to Congress, 


The: unite:d states. 


9 


which, on the i8th day of September, in said year, ordered 
that it as thus framed, with the resolutions and letter con¬ 
cerning the same, “be transmitted to the several legislatures 
in order to be submitted to a convention of delegates chosen 
in each state by the people thereof, in conformity to the 
resolves of the convention.” This document was called the 
Constitution of the United States, and went into ef¥ect on 
the first Wednesday in March, 1789, all of the original states, 
with the exception of South Carolina and Rhode Island, 
having ratified it previous to that time, and they ratifying 
the same shortly thereafter. 

The Constitution itself is one of the most remarkable, if 
not the most remarkable, document that has ever been 
penned. To be sure, it is not entirely original, as portions 
of it bear a striking resemblance to the Magna Charta, or 
“Great Charter,” of England, which was long years before 
practically wrung from the reluctant hands of King John, 
but it is remarkable for the wonderful foresight exercised 
by its framers. This can be plainly seen from the fact that, 
although the conditions and requirements of the nation 
have become almost completely revolutionized since the 
Constitution went into effect, yet through all this change 
and time has it been unnecessary to substantially alter it. 
It is remarkable, also, for its terseness and for the beauty of 
its language and the elegance of its expressions. It has 
passed under the severe scrutiny of perhaps the best literary 
critics of the ages, yet from each ordeal it has emerged tri¬ 
umphant and with new laurels. 

Under the Constitution, instead of a Congress of one 
house only, as was the case under the Articles of Confeder¬ 
ation, the government is divided into three branches or 
departments, each of which was formed and constituted in 
such a manner as to be a check or watch dog upon the oth¬ 
ers, thus very materially lessening the chances of fraud and 
corruption and the enactment of hasty or vicious legislation. 


lO 


CiVlIv GOVERNMENT OE 


'i'hese departments or branches are the Executive Depart¬ 
ment, the Legislative Department and the Judicial DeparL 
ment, and the powers of each of them are such as its name 
would indicate. Taken together, we believe, they form the 
most perfect government that has ever been devised by man, 
and therefore their founders deserve the deepest gratitude 
and thankfulness that can be bestowed by a world on 
bended knee. 

Having now at least a slight idea of the occurrences and 
causes which led up to the formation and adoption of the 
Constitution of the United States, it therefore boots us to 
j)roceed with the careful study of that remarkable instru¬ 
ment, and note with admiration and interest the beauty, the 
symmetry and the lack of friction of the government exist¬ 
ing under it. 


PREAMBLE, OR ENACJ'ING CLAUSE. 

We, the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquility, provide for the common 
defense, promote the general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this Constitution of the 
United States of America. 


The preamble or introductory clause of the Constitution 
of the United States is of the utmost importance, and hence 
should be carefully dissected and digested, for the reason, 
as has been heretofore stated, that it gives the objects, pur- 
])oses and intents for which the Constitution was originally 
framed and adopted. Its every phrase is laden with the in¬ 
spiring perfume of freedom’s own. The noblest sentiments 
of the Creator and the highest and best ideas of man are 
embodied in it. It is indeed a fitting prelude to an instru¬ 
ment such as is the Constitution we all love so well, and 
which we can ever the more and the plainer see is the real 
bulwark of the liberties we uoav enjoy. 


TH]^ UNITED states. 


I I 

Let us glance at its opening phrase and determine who 
it is that is establishing this Constitution of the United 
States. Listen, “We, the people of the United States.” Ah, 
it is the people who are the establishers, is it? The doctrine 
of the divine right of kings does not find much encourage¬ 
ment here. It is the people who are the sovereigns. From 
them emanates all authority, all law. They are the true and 
only sources of power. And these people are “The People 
of the United States,”—not people of different states consti¬ 
tuting a loose confederacy, as was the case under the Arti¬ 
cles of Confederation, but the people of one and the same 
nation, acting harmoniously together as brothers, and with 
the same ideas of national life. 

Now, why did these people of the United States establish 
this Constitution? 

First, because they wished “to form a more perfect 
union.” They had become heartily sick of and disgusted 
with the weak government which had existed, or attempted 
to exist, under the Articles of Confederation, and they now 
wanted one that had ample power to assert and maintain its 
independence, yet one so bridled and saddled that it could 
not become despotic and wantonly trample in the dust their 
God-given privileges and rights. 

Second, because they desired to “establish justice.” Under 
the Articles of Confederation there had been no national 
judiciary. The courts of the several states were the only 
judicial tribunals then in existence, and they so flagrantly 
discriminated in favor of their own citizens, and against 
foreigners and citizens of other states, that it at once be¬ 
came apparent to the framers of the Constitution and to the 
people that in order to hold these state courts in check and 
deal out even and exact justice to the citizens of all the 
states, and also to provide a means for the interpretation of 
the Constitution and the laws of Congress, that a national 
judicial system must be established. 


12 


civiiv gove:rnment oe 


Third, because it was their wish that ‘'domestic tranquil¬ 
lity'’ be insured. Under the Articles of Confederation the 
states were continually quarreling with each other. Matters 
were, indeed, in a deplorable condition. The citizens of the 
different states, except when a common fear brought them 
together to accomplish the same end, were constantly mixed 
up in some petty wrangle. Even rebellion itself was, in many 
parts of the country, raising its horrid front. At that time 
domestic tranquillity was a thing little experienced, but 
much desired. Hence, to secure it, it was determined to 
take certain sovereign rights away from all the states and 
repose them in the national government. 

Fourth, because they wished to “Provide for the common 
defense.” They saw plainly that if a government wishes to 
command the respect of the nations of the world and of its 
own citizens, it must have the power to raise, equip and 
maintain an army and navy. The impotency of the govern¬ 
ment in this respect under the Articles of Confederation 
was a wholesome lesson to them, and one which was 
well heeded. Yet they were exceeding careful to see that 
this two-edged power should be used for the benefit of all 
the people, or a majority thereof, and safe-guarded it in 
such a manner that it cannot well be abused. 

Fifth, because they wished to “Promote the general wel¬ 
fare,” this being the principal object for the establishment 
of their government. And well did they provide for it, as 
we shall learn later on. Every provision of the Constitution 
has that end in view. And, 

Sixth, because they desired to “Secure the blessings of 
liberty to ourselves and our posterity.” What a fitting cli¬ 
max to the preamble of the Constitution of the United 
States! These people and their forefathers had learned 
from the hard book of experience what it was to be under 
the yoke of a foreign oppressor. . Many of them had left 
their distant homes in order that they might be able to live 


THE UNITED states. 


13 


and die under liberty’s beneficent sway. The war of the 
Revolution had mainly been fought for that liberty for which 
the people yearned. Throughout the long and weary years 
of bloodshed that followed the signing of the Declaration 
of Independence it was the love of liberty that glowed in the 
hearts of the citizen-soldiery, and spurred them onward to 
grander and nobler achievements. And should this prize so 
dearly won now be surrendered? No, indeed! The whole 
aim now was to secure it, and this was done by giving to 
the general government only such powers as were necessary 
for the continuance of national sovereignty and indepen¬ 
dence—such powers as were necessary for its own preserva¬ 
tion,—and retaining in the states their inherent powers of 
home rule and self government. With what* success the 
labors of our forefathers were crowned in this respect, let 
the loving hearts of a grateful people proclaim. 


ARTICLE I. 

THE LEGISLATIVE DEPARTMENT. 

SECTION I. 

CONGRESS. 

All legislative powers herein granted shall be vested in a Congress of the 
United States, which shall consist of a Senate and a House of Representatives. 

As has been hereinbefore stated, the functions of govern¬ 
ment under the Constitution are divided into three separate 
and distinct branches or departments, the Legislative Depart¬ 
ment, the Executive Department and the Judicial Depart¬ 
ment. This was done because the hard earned experience of 
the centuries had taught the people that if all the functions of 

[1:1] 



civil, GOVERNMENT OE 


14 

government are vested in one person, or body of persons, 
such person or body of persons would invariably in the end 
usurp and betray the almost unlimited power and confidence 
reposed in them by the people. “Unlimited power reposed 
in the hands of a few begets tyranny” was their motto. And 
so they determined to create several departments, each one 
to be a check to and a jealous overseer of the power exer¬ 
cised by and the acts of the others. The first of these branches 
or departments given attention in the Constitution, and the 
one which occupies the ihost space, is the Legislative De¬ 
partment. Perhaps this i^ because the framers of that 
document looked upon it as the most important branch, 
for surely no law can be enforced by the Executive Depart¬ 
ment or interpreted or applied by the Judicial Department 
until it has first been made by the Legislative. 

It will be further noticed that this Legislative Department, 
in contra-distinction to that existing under the Articles of 
Confederation, consists of two houses, instead of but one 
only. The reason for this departure was because the peo¬ 
ple, although vehemently denying that they still harbored 
any love for the mother country, yet still did adhere tena¬ 
ciously to the better institutions, customs and usages of the 
land they had forsworn. This can be plainly seen from the 
fact that they established for their basic law the common 
law of England, and it is such even to this day in all the 
states and territories, with the single exception of the state 
of Louisiana, which at one time having been under the 
sway of the Latin state of France, still retains the civil law 
given it by that nation as its basic. Hence, it does not at 
all seem wonderful that the fathers should pattern their Leg¬ 
islative Department after that of England, which consists of 
a House of Commons and a House of Lords. But in doing 
so they were very careful not to adopt the same terms to 
designate each of the houses, but instead termed one the 


[I-: il 


the: unite:d states. 


15 


House of Representatives, which corresponds practically to 
the English House of Commons, and the other the Senate, 
which in all important respects corresponds to the English 
House of Lords. 

Another reason for creating these two chambers was be¬ 
cause the several states were still very jealous of each other, 
and each was afraid that the others might obtain an advan¬ 
tage over it in the government that was to be formed. The 
larger states, as was but natural, insisted that they should 
be represented in the Congress according to the ratio tbeir 
respective populations bore to the entire population of the 
Union, while the smaller ones maintained that they should 
nave an equal voice in the deliberations of Congress with 
their larger sisters, as was the case under the Articles of 
Confederation. So, in order to reconcile these conflicting 
claims it was determined to compromise the matter and 
create two separate and distinct houses, the members of 
one of which, the Senate, were to be elected by the states, 
each state to have an equal number, while those of the other, 
the House of Representatives, were to be elected by the 
people in proportion to the population of the several states. 

In forming these two chambers of the national legislature, 
the framers of the Constitution, perhaps, “builded better 
than they knew,” for many are the advantages which have 
been derived therefrom, chief among which is that under 
this arrangement a bill must be considered at least twice, once 
in each house, before it can be passed, and thus tend to 
prevent hasty and ill considered legislation. Then, too, the 
members of each house being elected for diflerent terms and 
in different ways, those of the Senate would be the more 
likelv to represent the interests of their respective states the 
best, while those of the House of Representatives, being- 
closer to the people, would the more likely represent the 
wishes and desires of the people. 


[i: I] 


6 


CIVIIv GOVERNMENT OE 


SECTION 2. 

HOUSE OF REPRESENTATIVES. 

CLAUSE I. 

COMPOSITION OF HOUSE OF. REPRESENTATIVES. 

The House of Representatives shall be composed of members chosen every 
second year by the people of the several stat'es, and the electors of each state 
shall have the qualifications requisite for electors of the most numerous branch 
of the state legislature. 

This chamber of the national Congress was probably 
called the House of Representatives for the reason that it is 
supposed to “represent’’ the people, while the members of 
the other chamber represent the states, and it was the next 
best appellation that presented itself after that of the House 
of Commons. 

Instead of the terms of the members of this house being 
for one year, as was the case under the Articles of Confed¬ 
eration, it will be noticed that they are extended to two 
years. The reason for this is because it was discovered that 
a one-year term is often too short to enable a member to 
became acquainted with the rules and workings of the 
house, and thus be in a position to act affirmatively and to 
the best advantage in securing the passage of important or 
needed legislation. Also, a one-year term is too short to 
enable the member to give the subjects to be legislated on 
adequate study, or to enable him to discover what new legis¬ 
lation the good of the people demands. Thi§ change in the 
length of the term was reasonable and has been fraught 
with much good to the country, as an annual change in the 
membership of this house of Congress would keep the great 
business interests and enterprises of the nation in continual 
uncertainty and upheaval. 


[i: 2; i] 


THIC united states. 


1 / 


The term of the first Congress commenced at noon, on 
the 4th day of March, 1789, and that of each succeeding 
Congress on the 4th day of March, at noon, in each odd- 
numbered year, and continues for two years. The Con¬ 
gress which is in power now, and which was elected in the 
autumn of 1900, is therefore known and designated as the 
LVII Congress, and its successor, which will come into 
powp* on March 4th, 1903, will be known as the LVIII 
Congress. Each Congress has two regular sessions and as 
many extra sessions as the President of the United States, 
in case of unusual emergency, sees fit to call, or which may 
have been provided for by law. The first session of each 
Congress is called the “long session,’’ because it convenes 
on the first Monday in December of each odd-numbered 
year and may continue in session until the first Monday in 
December in the next succeeding year, if it so chooses. The 
second term is called the “short session,” because it con¬ 
venes on the first Monday of December in each even-num¬ 
bered year, and can continue only until the 4th of March, 
at noon, in the year following. 

The members of this branch of the Congress are elected 
by the people or electors of the several states; that is, by 
those whom the laws of each state designate as voters. So 
we see that the matter, with the exception of a slight re¬ 
striction, is left entirely to the judgment of the several states. 
This restriction is that before an elector can vote for mem¬ 
bers of the lower house of Congress he must be qualified to 
vote for members of the lower house of his own state legis¬ 
lature. Hence, it happens that in a few of the states females 
over the age of twenty-one are, in connection with the 
males over that age, qualified electors to vote for members 
of the national House of Representatives. But in none of 
them are minors, or persons under that age, qualified elec¬ 
tors for either. Neither are insane persons, nor idiots, nor 


2 


[i: 2: i] 


CIVIL COVLRNMLnL or 


i8 


criminals convicted of felony and not pardoned, nor Indians 
not taxed. Also, in some of the states, persons otherwise 
([ualified are disqualified if they are unable to read and 
write the Constitution of the United States. Thus, we see 
that a voter qualified to vote for members of the lower house 
of Congress in one state may be disqualified to do so if he 
removes to another. This is because both the national and 
state constitutions refuse to admit that every citizen has a 
right to vote, and thus have a direct voice in the manage¬ 
ment of the government under which he lives. If this was 
otherwise, then women and children would be entitled to 
vote equally with men. On the other hand, this power is 
regarded as a privilege, which ])rivilegc becomes a right 
only after it is granted and not before. 


CLAUSE 2 . 

0U.\LIFICAT10NS OF REPRESENTATIVES. 

No person shall be a Representative who shall not have attained the age of 
twenty-hve years, and been seven years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of the state in which he shall be 
chosen. 


We have just considered the qualifications required of 
those who are entitled to vote for members of the United 
States House of Representatives. Now we are called upon 
to study the qualifications required of the Representatives 
themselves. 

Before a Representative can take his seat in the House he 
must be at least twenty-five years of age. This wise provis¬ 
ion was inserted for the reason that in all the states no man 
can exercise the privilege of voting until he “comes of age,^’ 
or is, in other words, twenty-one years old. If on the occur¬ 
rence of that event he could aspire and be elected to the 
House of Representatives, it can he plainly seen that his 


[i. 2: 2] 


the united states. 


9 


youth and inexperience with the workings of government 
would, in most cases, entirely unfit him for the duties and 
responsibilities of liis important office. A probation of four 
years for this purpose was considered little enough. 

A person must also be a citizen of the United States for 
the period of seven years before he can qualify as a Repre¬ 
sentative. From this we see that he need not be a natural 
born citizen, but may be a naturalized one. A person born 
in this country, and who does not give up his residence in 
it, is of course a full-fledged citizen from the moment of 
his birth, but one who was born a citizen or subject of a 
foreign nation and wishes to become a citizen of the United 
States, with the exception of an honorably discharged soldier, 
who may become one after a year’s residence, must live in 
the United States for a period of not less than five consecu¬ 
tive years. Hence, a naturalized citizen cannot become a 
member of the lower house of Congress until he has resided 
in this country continually for the period of twelve years, 
five to become a citizen and seven afterwards. This is so re¬ 
quired because it was deemed best not to allow any one a 
seat in this branch of the Congress who has not become 
thoroughly familiar with our institutions and our laws, as 
well as to overcome, in some measure at least, the political 
ideas of the land of his birth, and the twelve-year period of 
probation was thought sufficient to attain that end. 

It is also required that a Representative must be an in- 
iiabitant of the state from which he is chosew. This restric¬ 
tion was imposed in order that the person elected might 
have the welfare of his state at heart. However, the Con¬ 
stitution does not designate the length of time he must be 
an inhabitant of such state, but leaves the matter to the 
respective states themselves. In most of them the time is 
one year. Neither does it designate in which part of the 
state he shall reside, in case such state has been divided 


[i: 2: 2] 


20 


CIVIL GOVERNMENT OR 


into more than one congressional district under the author¬ 
ization of Congress. Propriety, however, and the best in¬ 
terests of the people would suggest that he be a resident of 
the district from which he is chosen. 

Besides the restrictions imposed by this clause on Repre¬ 
sentatives there are two others, the first of these being that 
no Representative in Congress shall hold any other office 
uncTer the United States (Article I., Section 6, Clause 2), 
and the second is that no person shall be a Representative 
who, having previously taken the oath as such to support 
tiie Constitution of the United States, shall have engaged 
in rebellion against the same, or abetted their enemies, giv¬ 
ing them aid or comfort, unless such disability is removed 
by a two-thirds vote of each house (Amendmt. XIII., Sec¬ 
tion 3). The discussion of both of these is at this time fore¬ 
gone until they can be reached in their jiroper order. 

^ CLAUSE 3. 

ArrORTiONAlENT OF REPRESENTATIVES AND DIRECT TAXES. 

(Representatives and direct taxes shall be apportioned among the several 
states which may be included within this Union, according to their respective 
numbers, which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and excluding 
Indians not taxed, three-fifths of all other persons). The actual enumeration 
shall be within three years after the first meeting of the Congress of the 
United States, and within every subsequent term of ten years, in such manner 
as they shall by law direct. The number of Representatives shall not exceed 
one for every thirty 'thousand, but each state shall have at least one represen¬ 
tative; and until such enumeration can be made, the state of New Hampshire 
shall be entitled to choose three, Massachusetts eight, Rhode Island and Prov¬ 
idence Plantation one, Connecticut five. New York six. New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North Carolina 
five. South Carolina five, and Georgia three. 

That portion of this clause which is contained in paren¬ 
theses has been amended by the second section of the XIV. 
Amendment to this Constitution, and hence at this time and 


[i: 2: 3] 


THE UNITED states. 


2 I 

place need be given but slight attention, as its chief value 
is mainly historical, except so far as it relates to direct taxes. 

It will be noticed that this clause, among other things, 
authorizes the levy by the national government of direct 
taxes; that is, poll taxes and taxes on real and personal 
property. But direct taxes, when levied, must be uniform 
throughout the United States, and this for obvious reasons. 
Only in several instances, the last of which was in 1862, has 
the government levied these direct taxes. At the present 
time it is almost impossible to do so, for the reason that the 
expenses of levying and collecting them would be so large 
as to bring forth the indignant protests of the people, the 
national government not being in a position to compel the 
states to levy and collect the direct taxes for it. The usual 
manner of raising revenue for the national government is 
by indirect taxation. 

The provision that the Representatives shall be appor¬ 
tioned among the several states according to the number of 
their respective inhabitants is still retained, with some modi¬ 
fications, in the XIV. Amendment, Section 2, in the discus¬ 
sion of which it will be properly considered. In this con¬ 
nection it is only necessary to remark that one of the main 
principles over which the Revolutionary War was fought 
was that “Taxation without representation is tyranny,” and 
hence the importance of and the necessity for this provision. 

At the time of the adoption of this Constitution all the 
states except Massachusetts were slave-holders, though in 
the North the number of slaves held was very small. When 
it came to apportioning the number of Representatives each 
of the states should have in Congress the large slave-holding 
states wished their slaves counted as part of the number of 
their inhabitants, while those having but few slaves wished 
them excluded. The matter was settled by a compromise, 
in which it was agreed that “three-fifths of all other per- 


[i: 2: 3] 


22 


CIVIL GOVKRNMKNT OR 


sons,” meaning three-fifths of all persons not free, for the 
framers of the Constitution did not like to tarnish that in¬ 
strument with the use of the word “slave,” should be taken 
into consideration in making the apportionment. But this 
part of the Constitution is now repealed and obsolete, and 
hence needs no further consideration. 

The Constitution also provides that an actual enumera¬ 
tion of the inhabitants of the United States shall be made 
within the period of three years from and after the date of 
the first meeting of Congress. This enumeration was called 
the census. The first census was taken during the year 
1790, and one has been taken during every tenth year since 
then. The census is at the present time taken under the 
supervision of the Department of the Interior, the head 
officer of the Census Bureau being styled the Superintendent 
of the Census. Under him is a state Superintendent of the 
Census appointed for each of the states. These state Super¬ 
intendents each divide their respective states up into numer¬ 
ous small census districts, over each of which they appoint 
a person called a Census Enumerator, whose business it is 
to enumerate the people residing in his district, and deter¬ 
mine all other things required by the Interior Department. 
By these means the government is ever enabled to keep a 
fairly strict account of its population, and hence always 
maintain an equalized representation in the lower house of 
Congress. 

The Constitution, in order to limit the number of Repre¬ 
sentatives, and thus prevent the House from becoming such 
a cumbrous body that important and needed legislation 
would be retarded and in many cases entirely lost, provides 
that there shall be not more than one Representative for 
every thirty thousand inhabitants. However, it will be 
noticed that it does not limit the number of inhabitants 
over thirty thousand which may constitute a congressional 


[i: 2: 3] 


TIIE UNITED STATES. 


23 


district and be entitled to one Representative. Hence, Con- 
p^ress has from time to time, as the popnlation of the Union 
increased, and with the same object in view as had the 
framers of the Constitution when they declared that there 
must not be more than one Representative for every thirty 
thousand, required each Representative to ‘"represent” a 
larger and ever larger number of inhabitants, until at the 
jwesent time the number has been increased to a trifle over 
186,000, the entire population of the nation now being en¬ 
titled to 386 Representatives. The provision that each 
state shall have not less than one Representative, no matter 
how small its pojmlation may be, was inserted in order to 
give even the smallest state a voice in the deliberations ol 
this branch of the Congress. 

CLAUSE 4- 

MANNER OF FILLING VACANCIES. 

When vacancies happen in the representation from any state, the executive 
authority thereof shall issue writs of election to fill such vacancies. 

A vacancy in the House of Representatives is usually 
caused by the death, insanity or resignation of the member, 
though it may be caused by his expulsion for various rea¬ 
sons, such as conduct unbecoming a gentleman, immorality, 
or a wanton disregard for the sanctity of the law. When, 
from any of these causes, or otherwise, vacancies do occur 
in any of the states, the executive authority thereof, that is, 
the Governor, or in his absence or incapacity, the Acting 
Governor, must issue writs of election to fill the same. This 
is done by ordering a special election to be held. The order 
is i)ublished in the various newspapers of the district in 
which the vacancy occurs, and designates the date on which 
such special election shall be held. The member thus 
chosen holds office only for the unexpired term of his im¬ 
mediate predecessor. 


[i: 2: 4] 


24 


civil, GOVERNMENT OE 


CLAUSE 5. 

POWER OF IMPEACHMENT. 


The House of Representatives shall choose their speaker and other officers, 
and shall have the sole power of impeachment. 


This clause gives the House power to choose its own 
Speaker and such other officers as may be necessary to main¬ 
tain its organization and facilitate the transaction of its 
business. The Speaker is the presiding officer of the House 
and probably receives his title in imitation of the Speaker 
of the British House of Commons, though this is doubtful. 
He is elected by a ballot from among the members, and 
may be removed from the chair at any time the House sees 
fit to do so. Each Congress elects, its own Speaker, and his 
duties are prescribed by the rules of the House. These 
duties are, to a great extent, precisely similar to those of 
the president or chairman of a body of individuals congre¬ 
gated together and organized for the accomplishment of 
some end. 

Of the ‘'other officers,” the most important are the 
Clerk, who has a large number of assistants, the Sergeant- 
at-arms, the Door-keeper and the Postmaster. The former, 
as his title would indicate, is the keeper of the records of 
the House and the recorder of its proceedings. The Ser¬ 
geant-at-arms bears the same relation to the House as a 
sherifl- does to a court of record. He acts under the direc¬ 
tion of the Speaker, and his duty is to keep order and serve 
all writs and processes of the House. The other officers 
perform the duties which their respective titles indicate. 
None of them can be members of the House, although they 
are chosen by it and serve during its pleasure, which is 
usually for the entire term of each Congress. 

[1:2:5] 


THE UNITED STATES. 


25 


The House also has the very important power of impeach¬ 
ment. That is, if the President or Vice President of the 
United States, or any of the civil officers thereof, have been 
g'liilty of such official misconduct as in the opinion of the 
House should disqualify them from longer holding their 
respective offices, or have been guilty of treason or bribery, 
or some other crime against the United States or any of 
them, or against individuals, the House of Representatives 
has sole power to enter a formal statement, in writing, 
against such officers or any of them, which statement must 
specify the matters and things with which he is charged. 
This written charge or statement is called “Articles of Im- 
peachnrent,” and in presenting it the House acts in the same 
capacity as does a grand jury. But although the House has 
the sole power to enter articles of impeachment against such 
civil officers of the United States as it may think should be 
removed from office, yet it has no power to try such officers. 
This power is delegated to the Senate of the United States, 
alone, as we shall see later on. 

SECTION 3. 

THE SENATE. 

CEAUSE I. 

COMPOSITION OF THE SENATE. 

The Senate of the United States shall be composed of two Senators from 
each state, chosen by the legislature thereof, for the term of six years, and 
each Senator shall have one vote. 

The people of the United States were, at the time the 
Constitution was formed, very democratic in thought and 
deed. They hated and despised everything that had the 
least semblance to a title, and hence it does not at all seem 
strange that although they were willing to pattern their 

[i: 3: I] 


26 


CIVIIv GOVERNMENT OE 


legislative branch after that of England, yet when it came to 
choosing a term to designate that chamber of the national 
legislature which corresponds to the English House of 
Lords, they utterly refused to adopt that name, as the very 
word “Lord,’’ meaning a member of the House of Lords, 
was distasteful to them ; but instead they turned their eyes 
longingly to the institutions of ancient Rome, and there 
from the crumbled remains of her past greatness dug up a 
term which, being suitable in meaning, they straightway 
adopted. The word “senate,” or “senatus,” was the appella¬ 
tion given to that branch of the government of Rome hav¬ 
ing supreme legislative authority, and was derived from the 
Latin word “senex,” signifying an old man. And who is 
there that can gaze on an aged man without a feeling of 
reverence and awe, when the thought of his experiences, 
his conservatism and the dignity of his position in society 
Hashes through the mind ? And so the choosing of the 
word “senate” as a name for this branch of the national 
Congress was indeed a happy thought, for it carries with it 
the dignity, the wisdom and the veneration of extreme old 
age, and commands the res])ect that is due to the counsels 
and admonitions of men grown hoary in the service of their 
country. 

Having now considered the derivation of the term “sen¬ 
ate,” and noted how fittingly approjwiate it is as the name 
of the body to which it is applied, Ave can at this time turn 
our attention to its com])osition. It consists of two mem¬ 
bers from each state, no matter how small or large that 
state may be. The reason for this arrangement, it will be 
remembered, is because the smaller states feared the larger 
ones would have too much power in the formation of the 
legislative branch if the re])resentation was in proportion 
to the population, and hence the concession to them that 
each state should be equally represented in the Senate. 


[i: 3: I] 


THE UNITED STATES. 


27 


The members of this chamber are elected by the state 
legislatures of their respective states for the term of six 
years, and in such a manner that one-third of their entire 
number go out of office on the 4th day of March in every 
odd-numbered year. They are elected upon receiving a 
majority on joint-ballot of the votes cast by the legislature 
of the state they are to represent. This plan was decided 
upon for two reasons, real or imaginary. The firs'^ of these 
was because it seemed proper that, as the Senators are sup¬ 
posed to represent the states, they should be elected by the 
states ; the second is because it was thought that the election 
of vSenatot's by the state legislatures would create a closer 
bond of fellowship and good feeling between the states and 
the-national government. Although these may have been 
of sufficient weight at the time the Constitution was framed 
to warrant the election of senators in this manner, yet at 
the present time the wisdom of said reasons is gravely 
doubted, and it is very probable that in the not distant fu¬ 
ture this provision of the Constitution will be amended to 
the extent that Senators shall be elected by a direct vote of 
the people, instead of by the state legislatures. The provi¬ 
sion that Senators shall hold office for the term of six years 
was inserted in order to give them dignity and indepen¬ 
dence, and to place them above the whims and caprices of 
their constituents. Then, too, it was thought that by re¬ 
quiring their term of office to be for six years, and •thus 
make a continuous body of the Senate, at least two thirds 
of the members of which are in office at the convening of 
each new Congress, would give the assurance of stability 
and steadfastness to the councils of the nation, and thus 
tend to secure for them confidence at home and respect 
abroad. 

The requirement that each state shall have two Senators 
and that each Senator shall have one vote was inserted for 
the reason that if one of the Senators of a state should be- 


[1.3: I] 


28 


CIVIIv GOVERNMENT OF 


come sick or incapacitated, which often occurs, the state 
would still have a voice in the Senate hall; whereas, if each 
state had but one senator, or two senators and but one vote, 
it would at times be entirely without representation. This, 
of course, may occur even under the present arrangement, 
but its possil)ility is very much lessened. 


CLAUSE 2. 

CLASSlFiCATION OF SENATORS. 

Immediately after they shall be assembled in consequence of the first elec¬ 
tion, they shall be divided as near as may be, into three classes. The seats of 
the Senators of the first class shall be vacated at the expiration of the seeond 
year; of the second class, at the expiration of the fourth year; and of the 
third elass, at the expiration of the sixth year; so that one-third may be 
chos6n every second year; and if vacancies happen by resignation, or other¬ 
wise, during the recess of the legislature of any state, the executive authority 
may make temporary appointments until the next meeting of the E_gislature, 
which shall then fill the vaeancies. 


As has been heretofore stated, the object for providing for 
the vacation of only one-third, or nearly so, of the seats in 
the Senate every second or odd-numbered year was to se¬ 
cure to that body at all times a large number of exiierienced 
members, and thus secure stability and conservatism in na¬ 
tional af¥airs. But the way this object was first accom¬ 
plished is somewhat unique and bears a striking resem¬ 
blance to a lottery. When the original states sent their Sena¬ 
tors to the first Congress it was undetermined which should 
belong to the first class, which to the second, and which to 
the third. So, in order to conform to the requirements of 
the Constitution, it was decided to draw lots to determine 
which should hold office two years from March 4th, 1789, 
which four years, and which six. Accordingly, slips of 
paper equal to the entire number of Senators chosen were 
placed in a receptacle, one-third of which slips were marked 


[i; 3: 2] 


TIIK UNITe:d state:s. 


29 


first class, one-third second class, and one-third third class. 
The Senators, then, on the 15th day of May, 1789, each 
drew out a slip, the marking on which determined whether 
he was to serve six years, four years or two years, but pains 
were taken that the terms of the two Senators from the same 
state should not expire on the same date, in order to prevent 
such state from changing both of her Senators at the same 
time. In this way it was amicably and to the satisfaction of 
all the Senators decided which ones sl^uld go out of office 
on March 4th, 1791, which on March 4th, 1793, and which 
on March 4th, i 795 - And even to the present day, when¬ 
ever a new state is admitted into the Union, its first Sena¬ 
tors determine by this curious method to which of the two 
classes next in order each of them shall belong, so as to 
maintain as nearly perfect equalization between the three 
classes as possible. The successors of the first Senators 
from each state, no matter to what classes they might be¬ 
long, hold their respective offices for the term of six years, 
however. Thus, at or before his term of office expires the 
state legislature of the state which is represented by the 
two-j^ear senator elects his successor, which successor does 
not hold office for two years, but for six years; and this is 
the case also with Senators elected to succeed the four-year 
and six-year Senators. By virtue of this arrangement it 
will be seen that one-third of the Senators go out of office 
every second and odd-numbered year, thus making a con¬ 
tinuous body of the Senate, in conformity to the spirit and 
requirements of the Constitution. 

When a vacancy takes place in the Senate, which vacancy 
may be occasioned for reasons similar to those which may 
cause a vacancy in the House of Representatives, the legis¬ 
lature of the state from which the member vacating was 
elected, if it is in session, must proceed to elect another 
member, which member thus elected holds office for the 


[i; 3: 2] 


30 


CIVIT. GOVKRNMKNT OR 


iinexpired term of liis predecessor. But if the legislature is 
not in session at the time the vacancy occurs, then the Gov¬ 
ernor, or Acting Governor, may, though he is not required 
to do so, appoint a person to fill such vacancy. This person 
thus appointed, however, does not hold office for the imex- 
pired term, as is the case with vacancies filled by the legis¬ 
lature, but only until it can meet in regular session and elect 
his successor. 

CLAUwSE 3- 

OU.\[J I'IC.ATIONS OF SENATORS. 

No person shall be a Senator, who shall not have attained the age of thirty 
years, and been nine years a citizen of the United States, and who shall not, 
when elected, he an inhabitant of the state from which he shall he chosen. 

It will be perceived that the qualifications of members of 
the Senate are slightly more stringent than those of. the 
1 fouse of Representatives, which is accounted for from the 
fact that the greater responsibilities of their office would 
suggest that their qualifications also be greater. la the 
main, however, the reasons for requiring that members of 
the House have certain qualifications before they can take 
their seats applies equally to members of the Senate, and 
as they have been fully given (see Section 2, Clause 2, this 
Article), we shall not here take the time and space to again 
enumerate them. We will only add that before a natural¬ 
ized citizen is eligible to the Senate he must reside in the 
United States continually for not less than fourteen years, 
five to become a citizen and nine afterwards, and that on 
Senators as well as Re])resentatives are placed the additional 
(lualifications required by Clause 2, Section 6. of this Article, 
and by Section 3 of the XIV. Amendment. Also, that the 
age of eligibility to the Senate of Rome was precisely the 
same as that to our own Senate. 


fi: 3 : 3l 


rnt unite:d statics. 


31 


CLAUSE 4. 

PRESIDING OFFICER OF THE SENATE. 

The Vice President of the United States shall be president of the Senate, 
but shall have no vote unless they be equally divided. 


Instead of allowing- the Senate to choose a presiding offi¬ 
cer from among its own members, as is the case in the 
House, we here note that it is the Vice President of the 
United States who shall be President of the Senate. This 
was so provided because it was feared that if the Senate was 
allowed to select its presiding officer from among its own 
members, this would give the state which the Senator 
chosen represented unequal power over the other states, as 
a presiding officer always exercises more or less influence 
over and above that exercised by an ordinary member. 
Then, too, the Vice President had nothing to do, and was, 
as a means of precaution, elected to fill the office of Presi¬ 
dent should the same become vacant by death or otherwise. 
Hence, in order that he might not be entirely idle, but on 
the other hand be in constant training for the duties of the 
Presidency, in case he should be called to fill that important 
office, by continually assisting in the transaction of the 
executive business of the Senate, it was determined to assign 
him this position. 

The duties of the Vice President, as presiding officer of 
the Senate, are practically the same as those of the Speaker 
of the House of Representatives, which we have recently 
noted, with the important exception that he has no vote, 
unless the members of the Senate are equally divided on 
some matter that is up before it, or are in a ‘‘dead-lock,’’ 
as it is called, in which case he has the casting vote. Nor 
can he participate in the debates of the Senate; nor can he 
appoint committees. 


[1:3:4] 


32 


CIVIT, GOVlvRNMKNT OR 


CLAUSE 5. 

OTHER OFFICERS OF SENATE. 


The Senate shall choose their other officers, and also a President pro tcfii' 
pore, in the absence of the Vice President, or when he shall exercise the 
office of President of the United States. 


As is the case in the House, the Senate is also empowered 
to choose all its officers, with the exception of the one pre¬ 
siding. These “other officers” are practically the same as 
those of the House and have the same duties. 

But in addition to this it is empowered to choose a Presi¬ 
dent pro tempore (for the time being), whose duties are the 
same as those of the Vice President, in case he is absent or 
called upon to assume the duties of the Presidency. The 
President pro tern, is chosen from among the members 
themselves, and hence has a vote, and can debate on any 
question before the Senate, but in the event of a tie, like 
the Speaker of the House, he has no casting vote. This 
officer can be removed at any time the Senate sees fit to 
do so, but when once elected he is usually allowed to retain 
his office until his Senatorial term expires. In order that 
the Senate might not be without a presiding officer in case 
the Vice President is absent or filling the office of President, 
it is the general practice of that officer to vacate his chair 
at the beginning of each Congress, to permit the Senate to 
choose its President pro tein. 

CLAUSES 6 AND 7. 

TRIAL OF IMPEACHMENTS. 

The Senate shall have the sole power to try all impeachments. When sit¬ 
ting for that purpose they shall be under oath or affirmation. When the 
President of the United States is tried, the Chief Justice shall preside; and no 
person shall be convicted without the concurrence of two-thirds of the mem¬ 
bers present. 


[1:3:5,6. 7] 


UNiTEiD staters. 


33 


Judgment in cases of impeachment shall not extend further than removal 
from office, and disqualification to hold and enjoy any office of honor, trust 
or profit under the United States; but the party convicted shall, nevertheless, 
be liable and subject to indictment, trial, judgment and punishment, accord¬ 
ing to law. 


We have learned that the House only has the sole power 
of impeachment (Section 2, Clause 5, this Article); now 
we learn that the Senate only has the sole power to try such 
impeachments as have been determined upon and ordered 
by the House. This is done in the manner following: The 
House, having decided that a certain civil officer should be 
removed, appoints a committee to notify the Senate of that 
fact, and that it will, in due time, exhibit particular articles 
of impeachment against him and make good the same. 
This committee is also empowered to demand that the Sen¬ 
ate try such officer. The House then appoints another 
committee, which usually consists of five members, to pre¬ 
pare the articles. After they have been prepared and 
adopted, and five persons, members of the House, have been 
appointed to conduct the prosecution' before the Senate, 
it is notified that the articles of impeachment are ready to 
be presented. The Senate thereupon notifies the House 
when it will receive the articles, upon the presentation of 
which it causes a summons to be issued to the officer ac¬ 
cused, requiring him to appear and file his answer within a 
certain time to the charges made against him. After this 
is done the Senate appoints a date when it will sit as a Court 
of Impeachment to judge the accused. At that time evi¬ 
dence for and against the defendant is taken, the Senators 
acting in the capacity of both judge and jury, and the five 
members appointed by the House for this purpose as prose¬ 
cuting attorneys. When the evidence is all in, the matter 
is fully argued as in a court of law, after which the Senate 
passes its judgment, which must be either one of acquittal, 


3 


[i: 3: 6-7] 


34 


CIVIL GOVKRNMKNT ol 


or that the person accused ])e removed from office, or that 
he be both removed and prohibited from holding any further 
office of honor, trust or profit under the United States. But 
the judgment must l)e one of acquittal, unless at least two- 
thirds of the members present vote for the defendant’s re¬ 
moval, or removal and disqualification. And the members 
of the Senate, when sitting as a Court of Impeachment, must 
be under oath, in order that the responsibility and the sol¬ 
emnity of the occasion may be impressed upon their minds. 

In all instances when the Senate sits as a court of im¬ 
peachment the Vice President presides as at other times, 
with the single exception of when either he himself or the 
President is to be tried, in which event it is provided that 
the Chief Justice of the United States Supreme Court shall 
preside. This is because, as the Vice President is interested 
in the result, it would be a flagrant bid to fraud and corrup¬ 
tion if the rule were otherwise. Then, too, on such a grave 
and momentous occasion it seems but fitting and proprietous 
that the presiding officer should be one so experienced in 
the law, and whose office carries with it so much dignity 
and respect as does that of the Chief Justice, the second high¬ 
est officer in the land. Perhaps the student has been wonder¬ 
ing why the Senate was at all given the power to try impeach¬ 
ments, when it would seem with propriety to belong to the 
province of the courts. But the framers of the Constitution 
did not take propriety much into consideration, except when 
they could do so without endangering the future welfare 
of the people. They aimed entirely at results. They at 
once saw that to drag political contests such as these are 
before the courts of law would have a tendency to degrade 
the latter and not secure a better trial for the former than 
could be had before the Senate, as politics and justice sel¬ 
dom if ever go well hand in hand. Politics is, to a greater 
or less extent, always partial, while justice should be impar- 


[1:3:6-7] 


the: united states. 35 

tial. Then, too, a judge is himself subject to impeachment. 
Hence, the wisdom of this provision. 

An impeachment trial is not a criminal trial, but a po¬ 
litical trial. Hence, if an officer is being impeached for 
the commission of an act which is a crime against the United 
States or any of them, he may also be tried, convicted and 
punished by the proper criminal courts, and this whether 
he is convicted or acquitted by the Senate. 

Thus far only seven impeachment trials have taken place 
before the Senate of the United States, resulting in one dis¬ 
missal, one»removal, one removal and disqualification, and 
four acquittals. 


SECTION 4. 

ELECTIONS AND SESSIONS. 

CLAUSE I. 

TIME and manner OF ELECTIONS. 

The times, places and manner of holding elections for Representatives and 
Senators shall be prescribed in each state by the legislature thereof; but the 
Congress m.ay at any time, by law, make or alter such regulations, except as 
to (he place of choosing Senators. 

For over fifty years after the Constitution was adopted 
the Congress did not exercise this power given it to pre¬ 
scribe the time and manner of holding the elections of its 
members, but in 1842 it passed a law to the effect that the 
territory from which each of the Representatives is elected 
shall be in a compact and contiguous body. This was done 
to prevent an abuse which had grown up in some of the 
Eastern states, called “Gerrymandering,” the object of 
which was to divide such states into the number of districts 
authorized by Congress for Representatives, “in an unfair 
and unnatural way, with a view of giving the political party 

[1:4:1] 


36 


CIVIIy GOVERNMENT OE 


making the division or apportionment an advantage over 
its opponent.’’ Since that time Congress has also provided 
that elections for Representatives shall be by ballot, and that 
they shall be held on the first Tuesday after the first Mon¬ 
day of November, in each even-numbered year, but further 
than this it has not gone. Therefore, all other regulations 
as to the times, places and manner of holding elections for 
Senators and Representatives are left to the several states, 
to be exercised by them until superseded by congressional 
law. But in no case can Congress designate the places where 
Senators are to be chosen. This prohibition was inserted in 
the Constitution in order to enable each of the states to 
select the site of its own capital or seat of government with¬ 
out Federal interference, as Senators are always electee! 
at the places where the several state legislatures meet, they 
being the seats of government of such states. Had it been 
otherwise. Congress might change the capital of a state to 
whatever locality therein it chose, and as often as it saw fit 
to do so, thus depriving the people in this respect of their 
dearly beloved right of home-rule. 

CLAUSE 2. 

MEETINGS OF CONGRESS. 

The Congress shall assemble at least once in every year, and such meeting 
shall be on the first Monday in December, unless they shall by law appoint a 
different day. 

The power given Congress by this clause to change the 
date on which it shall convene yearly has as yet not been 
exercised, and there are no indications at the present time 
that it ever will be. 

The reason that Congress was required to meet at least 
once each year is because it was believed that such a course 
would prove a great stumbling block to tyranny and in- 

[1:4:2] 


the united states. 


37 


justice. But although there must be one session held yearly, 
yet there may be more than one. If there is, it is usually 
termed an ‘‘extra’’ or “special” session, and may be pro¬ 
vided for by law beforehand, or called by the President in 
case of extraordinary emergency. 

SECTION 5. 

SEPARATE POWERS AND DUTIES. 

CLAUSE I. 

QUORUM. 

Each House shall be the judge of the elections, returns and qualifications 
of its own members, and a majority of each shall constitute a quorum to do 
business; but a smaller number may adjourn from day to day, and may be 
authorized to compel the attendance of absent members, in such manner and 
under such penalties as each House may provide. 

The power given each House by this clause, to be the 
judge of the elections, returns and qualifications of its own 
members, means only that each House has the right to deter¬ 
mine who is and who is not entitled to membership in it. 
It quite frequently happens, especially in the House, that 
the seat of a member is contested by one who believes he 
has a better right to it than he who received the certificate 
of election; or that certain persons duly elected are not qual¬ 
ified to hold seats in the Congress because of the restrictions 
of the Constitution; in which cases this power is exercised. 
The object of giving each House this peculiar power is to 
enable it at all times to retain and maintain its purity and 
independence, in order that it may command the respect 
and confidence of the people. But although this power is 
very beneficent and should be retained at all hazards, yet it 
has often been abused for unworthy purposes. This is 
eenerallv the case when the members of either Blouse are 


[1:5:1] 


38 


CIVIIv GOVERNMENT OE 


nearly evenly balanced between the parties, the one having 
the majority seating its fellow partisan in spite of justice or 
right. This condition is indeed deplorable, especially when 
we consider that the decision of each House is final and 
cannot be reviewed by the other House or by the courts, 
and it is to be hoped that some remedy will be found for it 
at a not distant day. 

The provision that a majority of each House is sufficient 
to constitute a quorum to do business is a very wise one, 
and is one which has been patterned after almost univer¬ 
sally. Were it provided that a smaller number should con¬ 
stitute a quorum for the transaction of business, it can be 
readily seen that an active minority would be given too 
much power; while on the other hand, to require more 
than a majority would make it possible for a minority to 
retard and even prevent legislation. Rut it sometimes hap¬ 
pens that a majority are not present to do business. When 
such is the case the minority may meet and adjourn from 
day to day in order to keep up the organization of the House 
to which "they belong, and may, under the rules thereof made 
in pursuance to the latter part of this clause, compel the at¬ 
tendance of absentees who are not sick, or who have not 
been excused by their respective Houses, by causing them 
to be arrested and brought to the seat of government by 
the Sergeant-at-arms or one of his deputies, as no member 
has a right to be absent unless excused. But it is not usual 
to impose a fine on the members whose attendance is thus 
enforced, except so far as the payment of the costs are con¬ 
cerned. The reason for reposing this power in the minority 
is to raise a barrier against the majority purposely absenting 
themselves in order to retard or prevent the transaction of 
business. 


[1:5:1] 


THK UNITED STATES. 


39 


CLAUSE 2 . 

RULES OF EACH HOUSE. 

Each House may determine the rules' of its proceedings, punish its mem¬ 
bers for disorderly behavior, and with the concurrence of two-thirds, expel a 
member. 

Each House early availed itself of the permission given it 
by this clause to form a set of rules for its own government, 
as it was soon discovered that they were necessary to check 
undue haste, and to prevent confusion and delay, as well 
as to expedite the transaction of business. These rules are 
based upomand patterned after those in vogue in the Eng¬ 
lish Parliament, commonly called parliamentary rules. To 
a great extent they are the same as those used by most 
legislative, deliberative, business and social bodies the 
world over, and their use has been fraught with much good. 

Neither House has often availed itself of the power tg 
punish or expel any of its members, although when it does 
do so it is generally for a good reason, especially in the 
event of an expulsion, as the requirements of a two-thirds 
vote is likely to guard against unreasonable prejudice or 
partisan influence. The last member to be expelled from 
either House was Brigham Roberts, congressman-elect 
from Utah, by the House of Representatives of the LVI. 
Congress, for the reason, as was claimed, that he being a 
believer in the doctrines of Mormonism, still had a plurality 
of wives, and therefore was a bigamist and a breaker of the 
established law of the land. 

CLAUSE 3. 

RECORDS AND JOURNALS OF CONGRESS. 

Each House shall keep a journal ol its proceedings, and, from time to 
time, publish the same, excepting such parts as may, in their judgment, require 
secrecy; and the yeas and nays of the members of either House shall, at the 
desire of one-fifth of those present, be entered on the journal. 


[1:5; 2-31 


40 


civil. gove:rnme:nt or 


The requirement that both Houses shall make their pro¬ 
ceedings public, except such a portion thereof as should in 
their judgment be kept secret, is the part of wisdom, as 
nothing will so prevent misrule and stimulate the legislators 
onward to higher and nobler aims as will the fact that the 
eyes of the nation, and of their individual constituents 
especially, are constantly upon them. None realize this 
better than do the congressmen themselves, and hence they 
have even gone further in the matter of publicity than is 
required by the Constitution, in that it is the constant prac¬ 
tice to permit spectators and newspaper reporters to wit¬ 
ness and report the proceedings of both Houses, and also 
to authorize members to have their speeches printed and 
distributed at the public expense. It is a rare event for the 
House to have a secret session, but the Senate, in the trans¬ 
action of its executive business, still very often holds what 
is called an “executive” or “star chamber” session, the pro¬ 
ceedings of which are kept secret. 

To determine whether any measure before either House 
of Congress has passed or not, it is first usual to resort to 
the vote by acclmnation; that is, all members in favor of the 
measure, when the question is put by the presiding officer, 
answer “aye,” while those opposed answer “no.” If a vast 
majority answers one way or the other, it is easy to decide, 
and thus save much time. But if the vote by acclamation is 
so nearly balanced that the presiding officer is unable to 
decide, or one or more of the members call for a division of 
the House, then resort is Had to what is called a rising vote. 
This is done by having all those in favor of the measure 
rise and remain standing until they are counted, after which 
they take their seats, and those opposed rise and are 
counted. These methods of voting suffice for ordinary 
occasions, but it often happens that an important question is 
before either House, in regard to which it is advisable to 
have a record kept of the way each member voted. When 

[1:5:3] 


thic unitkd states. 


41 


such is the case, and at least one-fifth of the members pres¬ 
ent desire it, then still another method, of voting, known as 
the viva voce, or yea and nay method, is resorted to. This 
is done by calling the roll of the House and entering the 
way each member voted opposite his name, thus keeping a 
permanent record thereof. The result of this latter method 
is very beneficent, as it makes the members exceedingly 
careful how they vote, for it reminds them that should they 
at any time come up for re-election, and have voted con¬ 
trary to the wishes of their constituents on any measure, 
such fact will almost invariably be brought up against them 
to their disadvantage. 


CLAUSE 4. 

ADJOURNMENT. 

Neither House, during the session of Congress, shall, without the cofisent 
of the other, adjourn for more than three days, nor to any other place than 
that in which the two Houses shall be sitting. 

The reason for the insertion of this provision is self-evi¬ 
dent. If either House could adjourn without the consent 
of the other for an unlimited time, the legislative depart¬ 
ment of the United States would at times be almost useless, 
if not quite so. But the two Houses concurrently may 
adjourn for any length of time, or to any other place than 
the one in which they are sitting. Since the seat of gov¬ 
ernment was established at Washington, however. Congress 
has never met at any other place than in the capitol building 
located there. 

The sessions of Congress may now be ended in one of 
three ways: 

First, by limitation; that is, the terms of Congress be¬ 
ginning on the first Monday of December in each odd- 
numbered year must end on the first Monday of December 

[1:5:4] 


42 


civil, GOVERNMENT OE 


in the next succeeding' year, and the sessions beginning on 
the first Monday of December in each even-numbered year 
must end on the 4th day of March, at noon, in the year fol¬ 
lowing, the terms of all the representatives and one-third of 
the Senators expiring at that time. 

Second, by the concurring agreement of both Houses to 
adjourn until a time certain, or for an indefinite time, which 
is called adjourning sine die. And 

Third, if the two Houses fail to come to an agreement as 
to the time of adjournment, the President may declare them 
adjourned for an indefinite time or to a time certain. 


SECTION 6. 

MEMBERS. 

CL.VUSE I. 

COMI’KNSATION AND ATTENDANCE OF MEMBERS. 

'J'he Senators and Representatives sliall receive a compensation for ttieir 
services, to be ascertained by law, and paid out of the treasury of the United 
States. Ihey shall in all cases, except treason, felony and breach of the peace, 
be privileged irom arrest during their attendance at the sessions of their re¬ 
spective Houses, and in going to and returning from the same; and for any 
speech or debate in either House, they shall not be questioned in any other 
place. 

One of the chief fundamental principles of the government 
of the United States is that both the rich and the poor shall 
be equal in the eyes of the law; and that the poor, so far 
as it is concerned, shall have an equal chance with the rich 
to aspire and be elected to offices of honor, trust and profit 
under it. For that reason the Constitution provides that 
the members of the Congress of the United States shall 
receive a salary, to be determined by law, so that the poorest 
of the nation’s citizens, if he be eligible and worthy, may sit 


[1:6:1] 


the united states. 


43 


in her legislative halls ; whereas, if no salary was paid, only 
the wealthy could afford to do so. This salary is fixed by 
the Congress itself, subject only to the approval of the Pres¬ 
ident, and the restriction that it must not be increased or 
diminished during the terms of those fixing it. At the pres¬ 
ent time it is $5,000 per annum for Senators and Represen¬ 
tatives alike, together with their mileage at the rate of ten 
cents per mile in going from and returning to their several 
homes from the seat of government by tlie nearest route, 
with the exception that the Speaker of the House and the 
President pro tern, of the Senate, when the latter is acting as 
its presiding'"officer, each receives a salary of $8,000 per 
year and his mileage. 

The reason that Congressmen are privileged from arrest 
as provided in the clause we are considering is because their 
respective states or districts are deeply interested in having 
them attend at all times to the duties they were elected to 
perform, and hence should not be deprived of their voices 
and votes because of some evil-minded or frivolous reason. 
Where the crime with which they are charged is grave, 
however, such as treason, felony or breach of the peace, 
the members of Congress are not privileged from arrest to 
any greater extent than is an ordinary person. This excep¬ 
tion to the rule was made on the ground of public policy, 
as a Congressman guilty of such charges should not be per¬ 
mitted to retain his seat in the highest law-making body in 
the land. 

Members of both Houses, while speaking or debating in 
their respective Houses, are also permitted to have full and 
untrammelled sway in the expression of their opinions, and 
this without fear of being brought to account for the same 
in an action for slander prosecuted in a suit at law, unless 
they become too outrageously offensive, when they are 
usually called to account by the House of which they are 


[r. 6: i] 


44 


CIVIIv GOVERNMENT OE 


members. The reason for this provision is to protect and 
encourage members who have the welfare of their country 
at heart in exposing any corruption in the workings or 
management of the government, no matter how rich and 
influential the doers thereof may be, without fear of being 
held personally liable therefor. It should be understood, 
however, that this privilege extends only to members while 
speaking or debating on the floors of their respective 
Houses. If they slander or libel anyone in any other place, 
they are amenable to the courts in the same manner and to 
the same extent as any common citizen or resident. 

CLAUSE 2. 

RESTRICTIONS ON CONGRESSMEN. 

No Senator or Representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United 
States, which shall have been created, or the emoluments whereof shall have 
been increased during such time; and no person holding any office under the 
United States shall be a member of either House during his continuance m 
office. 

This restriction was imposed in order to destroy in the 
minds of all ambitious and selfish members any hope of ever 
receiving personal pecuniary gain out of some civil office 
that may be created, or the salary of which may be increased, 
during their terms of office, and thus remove from them 
the temptation to create new and perhaps useless offices 
with large salaries for their own benefit, or to increase be¬ 
yond a reasonable amount, for a like reason, the salaries of 
offices already in existence. Also, to protect Congressmen 
from undue influence on the part of the President, who, 
upon their conferring some favor on him, might promise to 
give them the appointment to certain offices which it is con¬ 
templated to create, or the salary of which may be raised, 
in compensation therefor. But this clause does not prohibit 

[1:6:2] 


the: united states. 


45 


members from being appointed to such offices as soon as 
their terms have expired; nor does it prevent a member 
from resigning his seat and accepting the appointment to an 
office which was created, or the salary of which was raised, 
previous to the date of his election; nor does it prohibit 
him from resigning his seat and accepting the appointment 
to a military office, even if the same was created, or the sal¬ 
ary thereof was increased, during his term of office and for 
his special benefit. 

In addition, this section further provides that civil officers 
of the United States, during their terms of office, cannot be 
members of the Congress. The reason for the insertion of 
this was to appease the fears of many that the Executive 
Department of the government, if its officers were allowed 
to be members of Congress, would be in a position to exer¬ 
cise undue influence in the councils of the nation, and thus 
gradually strengthen itself at the expense of the people. 

SECTION 7. 

LAW MAKING. 

CLAUSE I. 

appropriation biuls. 

All bills for raising revenue shall originate in the House of Representatives; 
but the Senate may propose or concur with amendments, as on other bills. 

The expenses of conducting the government must 
be met, whether this be done by levying taxes directly 
or indirectly, and in either event the people are the 
ones who must finally pay them. Hence, as the Rep¬ 
resentatives are nearest the people, and can therefore 
the more readily be held to account in case they 
needlessly increase the expenses of government, the 

[1:7:1] 


46 


CIVIIv GOVERNMENT OE 


wisdom of this provision l)ecomes plainly apparent. But 
even under such circumstances the framers of the Constitu¬ 
tion met obstacles in their paths in the shape of the jeal¬ 
ousies of the smaller states, for they feared that, as their 
voices in the House would necessarily be small, they would 
be treated unjustly; so in order to allay their fears in this 
respect, it was decided to give the Senate power to propose 
or concur in amendments to such bills as may have orig¬ 
inated in the House for the purpose of raising revenue suffi¬ 
cient to satisfy the demands of government, as in this 
branch of the Congress the smaller states have an equal 
voice with the larger ones. 

CLAUSE 2. 

now r.iLr,s become laws. 

Every bill wliich shall have passed the House of Representatives and the 
Senate, shall, before it becomes a law, be presented to the President of the 
United States; if he approves he shall sign it, but if not he shall return it, 
with his objections, to the House in which it originated, who shall enter the 
objections at large on their journal, and proceed to reconsider it. if after 
such reconsideration two-thirds of that House shall agree to pass the bill, it 
shall be sent, together with the objections, to the other House, by whieh it 
shall likewise be reconsidered, and if approved by two-thirds of that House 
it shall become a law. P»ut in all such cases the votes of both Houses shall be 
determined by yeas and nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each House respectively. Jf 
any bill shall not be returned by the President within ten days (Sundays 
excluded) after it shall have been presented to him, the same shall be a law, 
in like manner as if he had signed it, unless the Congress by their adjourn¬ 
ment prevents its return, in which case it shall not be a law. 

From this clause we note that a bill may become a law in 
any one of three ways: First, by having passed both 
Houses and been signed by the President ; second, by hav¬ 
ing passed both Houses, been vetoed by the President and 
returned to the Plouse in which it originated, together with 
the President’s objections thereto, and then been passed 
over his veto by a two-thirds majority of the members of 

[1:7:21 . 


■h 


THE UNITED STATES. 


47 


each House present and voting; and third, by having passed 
1 )oth Houses, been delivered to the President, and failed in 
receiving his signature thereto within ten days from the 
date it was delivered to him, Sundays excluded, unless the 
Congress is not in session on the tenth day, in which event 
it does not become a law. 

The veto power, although on its face seemingly incon¬ 
sistent with republican institutions, yet ^r6m its having been 
exercised by the rulers of all civilized nations from time im¬ 
memorial, has become to be looked upon as an inalienable 
prerogative belonging to the nation’s head. And why 
should it not be considered thus when we call to mind 
the fact that as it is the President’s duty to enforce the 
laws, he from his having great experience in such matters, 
would seem the likeliest to know whether certain bills, 
if they became laws, would result beneficially to the 
country or zncc versa? But this is not the only end at¬ 
tained by reposing the veto power in the hands of the Pres¬ 
ident. Congress at times tries to encroach upon the execu¬ 
tive power given the President by the Constitution, in which 
events he can eft'ectually check them by the exercise of the 
veto power, and thus fulfil the great object for which the 
three departments of our government were created. Then, 
too, this power in the hands of the President is an additional 
guaranty against hasty and ill-considered legislation. 

But the veto power exercised by the President is cpiite 
different from that exercised by the rulers of most other 
nations, and in this it is in harmony with the institu¬ 
tions of our country. The veto of the Roman Tribune was 
final, as is also that of the English king, as well as that of 
almost all European sovereigns, but the veto of the Presi¬ 
dent is not, except in the case of all bills vetoed or “pock¬ 
eted” (if the President fails to sign or veto a bill sent him 
during the last ten days of a session, it is called “pocketing”) 


[1:7: 2] 


48 


CIVIL govLrnmp:nT OL 


during the final days of each session, when his veto power 
is practically absolute. In all other instances the Congress 
can pass a vetoed bill over the President’s objection by a 
two-thirds vote of the members present and voting in each 
Plouse. 

The provision that a bill shall become a law if it is neither 
vetoed or signed by the President within ten days after it is 
delivered to him, in case Congress is in session on the tenth 
day, is a very wise one, as it allows him ample opportunity 
to give the matter careful consideration, but at the same 
time prevents a bill being killed by negligence or held up 
for the purpose of embarrassing legislation. It is custom¬ 
ary for the Presidents, when they feel that they cannot give 
a bill their full sanction, and yet do not wish to give it their 
entire disapproval, to allow it to become a law in this man¬ 
ner. 


CLAUSE 3. 

.lOJNT RESOLUTIONS. 

I'.very order, resolution or veto to which the concurrence of the Senate 
and House of Representatives may be necessary (except on a question of ad¬ 
journment), shall be presented to the President of the United States; and 
before the same shall take effect, shall be approved by him, or, being dis¬ 
approved by him, shall be repassed by two-thirds of the Senate and House 
of Representatives, according to the rules and limitations prescribed in the 
case of a bill. 

This clause was inserted in order to prevent the Congress 
from eluding the President’s veto power by passing an order 
or resolution which is in effect a law, by merely giving it 
a different name. It is of very little value in view of the 
fact that the courts would probably declare all orders or 
resolutions passed with such an intent entirely void. The 
only office it therefore serves is to put the matter beyond 
controversy. 


TIIK UNITED STATENS. 


49 


But not all resolutions or orders need be submitted to the 
President for his approval or disapproval. Thus, all reso¬ 
lutions passed by the two Houses, but not intended to have 
the force of law, such as agreements to do something at a 
future time, which are called concurrent resolutions, need not 
have the President’s signature. Neither need resolutions 
proposing an amendment to the Constitution; nor those ex¬ 
pressing an opinion merely; nor those relat^g solely to the 
organization or regulation of either of the" Houses. 


SECTION 8. 

POWERvS OF CONGRESS. 

Thus far Article I. of the Constitution has treated entirely 
oT the structure and organization of the legislative depart¬ 
ment. Now we have come to that part which treats of the 
pozvers of Congress, the sole legislative body of the national 
government. 

But before entering upon the study of these powers it is 
well for the student to at this time know and constantly bear 
in mind that there is a very great distinction between the 
power of Congress to enact laws and the power of the sev¬ 
eral state legislatures to do the same thing, for it will be con¬ 
stantly cropping up in the study of the legislative functions 
of both. This distinction is, that the Congress of the United 
States can pass only such laws as it is expressly authorized 
to pass by the Constitution of the United States, and such 
other laws as are impliedly permitted by these; while on the 
other hand the state legislatures, ex proprio vigora (of their 
own inherent right), have the power to pass all laws which 
they are not either expressly or impliedly forbidden to 
pass by their own Constitutions or by the Constitution, laws 
and treaties of the United States. The importance of this 
distinction becomes doubly apparent when it is recognized 

4 [i:8] 


50 


CIVIL covkrnmlnt or 


that the supreme courts of l)oth the states and the nation 
must always take it mto consideration when determining 
the validity of a law, the former declaring all laws not pro¬ 
hibited 1 )y the Constitutions of their respective states, or by 
the Constitution, laws and treaties of the United States, valid, 
while the latter declares all laws passed by Congress that 
are not expressly or impliedly authorized by the Constitu¬ 
tion of the United States invalid. This great and important 
distinction is maintained for the reason that, as the people in 
this country are the sovereigns and the sources of all law, 
they, when they formed themselves into separate and dis¬ 
tinct governing bodies called states, had the right to pass 
any kind of a law they were so minded. But it did not take 
them long to discover that they must place some restrictions 
upon themselves or they would at times be likely to abuse 
their power. So they formed a state Constitution setting 
forth what laws they should be prohibited from passing, 
for the purpose of accomplishing this end. But unlike the 
states, the national government has no power cx proprio 
vigora, and this for the reason that as it was formed by the 
states for the purposes hereinbefore mentioned, they dele¬ 
gating to it only such of their inherent power as they were 
willing for their common good to surrender, and no more, 
thus making the national government a government of lim¬ 
ited power. This can be plainly seen when we consider 
that the states disunited might each still continue to exist, 
but without the states in union there could be no such polit¬ 
ical body as the United States. Hence, it follows that if the 
United States has no inherent power, but must depend for 
what power it does have upon the several states, which 
power they can at any time increase or diminish at their 
pleasure, that its Congress can enact only such laws as the 
power which was flelegated to it permits. 


[i:8] 


TIIK UNITED states. 


51 


CLAUSE I. 
taxation. 

The Congress shall have power: 

To lay and collect taxes, duties, imposts, and excises, to pay the debts 
and provide for the common defense and general welfare of the United States; 
but all duties, imposts and excises shall be uniform throughout the United 
States. 

As we have already seen, the Cdndnental Congress, re¬ 
ceiving what little power it had from the Articles of Con¬ 
federation, was unable to levy taxes, etc., to support the 
government'which in consequence was almost a total fail¬ 
ure. Therefore, when the new government was formed 
under the Constitution, it was determined to remedy this 
vital defect in the old by giving it the power “to lay and 
collect taxes, duties, imposts and excises,” for the truth of 
the fact as taught by stern experience, that no government 
can long exist unless the power of taxation, which is a 
necessary part of its sovereignty, is given it, was deeply 
and indelibly impressed upon the minds of the framers of 
the Constitution. But even had the Constitution remained 
silent on this point, yet would the government created by it 
at least impliedly have had the power to levy and collect 
taxes, etc., for the reason that the United States is a nation 
having sufficient power to perpetuate its existence, and not 
a loose confederation of nations, as was the case under the 
Articles of Confederation. 

The reason that the power to levy and collect taxes, etc., 
was reposed in Congress is self-evident. “They who must 
pay the taxes should have the right to superintend their 
levying, collecting and expending,” and this they do 
through their representatives in Congress. But the fact that 
the United States has this power does not preclude the sev¬ 
eral states from exercising it also. They can levy all taxes 
necessary for their own maintenance, as well as authorize 


[1:8:1] 


52 


CIVIIv govkrnme:n.t or 


all municipal bodies existing within them to do the same. 
But they cannot levy duties on imports or exports for their 
own benefit, except so far as may be necessary to execute 
their inspection laws. 

The usual means of raising money to carry on the gov¬ 
ernment of the United States is by indirect taxation, i. e., 
by means of duties, imposts and excises; though the gov¬ 
ernment has the power to levy a direct tax on the persons 
and property of its people (Section 2, Clause 3, this Article). 
The latter, however, has been done but six times during 
the history of the nation, the last being in 1862. At the 
present time it would be practically impossible for the na¬ 
tional government to levy direct taxes, because of the enor¬ 
mous expense attendant thereon, it not being in a position 
to compel the states to collect the same for it. 

Duties are taxes levied on the importation or exportation 
of goods or other property. Export duties cannot be levied 
in this country, as they are forbidden by the Constitution 
(Section 9, Clause 5, this Article), though it would seem 
from a recent decision of the Supreme Court that they may 
be levied by Congress in the so-called colonial territories of 
the United States, such as Porto Rico and the Philippines. 
Import duties are of two kinds, specific and ad valorem. A 
specific duty is one upon the weight or measure of goods ; an 
ad valorem duty is one upon their value. The most usual 
duties imposed by the government on imports are ad 
valorem duties, as they seem to be the fairest and most satis¬ 
factory. The rate of duty is called a tarif¥, of which there 
are three kinds: a prohibitory tariff, a protective tariff and a 
tariff for revenue only. When no duties are levied upon 
imports or exports the status is known as f ree trade. 

Imposts and excises constitute what is termed “internal 
revenues,” for the reason that they are levied on certain 
domestic industries of the country. The word imposts has 


[1.8:1] 


THE UNITED STATES. 


53 


no special significance and is used vaguely in the Constitu¬ 
tion, though it is supposed to cover all kinds of indirect 
taxes not included or covered by the words duties and ex¬ 
cises. Excises are indirect taxes levied on tobaccos, fermented 
and alcoholic liquors, etc., manufactured in this country, 
and on persons who manufacture or use certain articles, 
instruments or things. 

The reason for the provision that indirect taxes shall be 
uniform throughout the United Stat^ is very obvious, as it 
is the only fair means of taxation, and prevents legislation 
partial to certain portions of the country as against the re¬ 
maining portions. But this wise provision, it would appear 
from a decision of the Supreme Court of the United States 
rendered during the latter part of May, 1901, applies only 
to such parts of the nation as enjoy the privileges and guar¬ 
anties of statehood, leaving all territories and dependencies 
of the United States at the mercy of Congress in this re¬ 
spect. It is to be hoped, however, that the proverbial fair¬ 
ness and love of justice of the American people will not 
tolerate the enacting by Congress of revenue laws which 
discriminate against these territories and dependencies. To 
permit such to be done would be to act the part of tyrants 
and bull-dozers by our people against those who are help¬ 
less and at our mercy, and to set at defiance all our national 
traditions. 

Under this clause Congress has power to levy and collect 
taxes, direct and indirect, but for the accomplishment of 
three objects only, in so far as the states themselves are con¬ 
cerned, and these are: First, to pay the public indebted¬ 
ness ; second, to provide for the common defense; and, 
third, to provide for the general welfare. Uongress has no 
right to tax the people of the states for any purpose 
other than the accomplishment of these three objects, and 
then only enough to attain that end. Taxes levied and col- 




54 


CIVIL GOVERNMENT OE 


lected by Congress cannot be used for the benefit of one, 
or part, of the states, to the exclusion of the rest; nor can 
they be used for any other purposes than the payment of the 
national debt and the providing for the common defense 
and general welfare of all the people. 

CLAUSE 2 . 

POWER TO BORROW. 

To borrow money on the credit of the United States. 

This clause gives Congress power to borrow money on 
the credit of the United States, so that» the hands of the 
nation need not be bound and helpless in times of great 
emergency. But Congress is the only department of the 
government that can borrow, unless it by law delegates its 
power in this respect to some other department. Ordi¬ 
narily, in time of peace, it should not be necessary for Con¬ 
gress to exercise this power, and it very seldom does. 
But in time of long and continued war no taxes which tlie 
people could pay would be sufficient to defray the expenses 
of carrying on the same, and hence the wisdom of this 
provision. 

The present out-standing debt of the United States is 
in three forms: Bonds, treasury notes and floating debt. 
The former is the most usual form, and bear interest at 
from three to five per cent, payable semi-annually. Treas¬ 
ury notes, or “greenbacks,’’ as they are called, are in effect 
very similar to bonds, both of them being promises to pav 
money, but greenbacks do not draw interest as is the case 
with bonds, and are payable on demand at any time, while 
bonds are payable only after they become due. The float¬ 
ing debt consists of interest accruing, salaries unpaid, etc. 
Bonds are always sold to the highest bidder for cash, and 
on account of the good credit of the United States usually 
command a premium. 

[1:8:2] 


THli UNITED STATES. 


55 


CLAUSE 3- 

POWER TO REGULATE COMMERCE. 

To regulate commerce with foreign nations, and among the several states, 
and with the Indian tribes. 


We have hereinbefore noted that under the Confedera¬ 
tion and previous thereto each of the states had exclusive 
control\over its own commerce, and regulated the same in 
its own peculiar way. Of course, as was natural under 
these conditions, each state exerted every effort to benefit 
itself at the, expense of the others, and the result was that 
the commerce of all of them became practically ruined, and 
it is not at all improbable would have been the means of 
breaking up the Union eventually had this power not been 
taken away from them. For these reasons the wisdom of 
this provision, that Congress shall have the exclusive reg¬ 
ulation over all commerce, both foreign and domestic, 
becomes doubly apparent. 

The power of Congress to regulate commerce implies 
also the power to prescribe rules for traffic and navigation 
between the several states and with foreign nations. Thus, 
if a navigable river is partly in one state and partly in 
another Congress has the exclusive power to prescribe 
rules for the regulation of the commerce carried on thereon, 
as is also the case on inland seas similarly situated, and 
on railways not wholly within one state. So, also, has ff 
the exclusive power to prescribe rules for the regulation 
of all commerce with foreign nations. But it has no con¬ 
trol over the commerce carried on on railways, waterways, 
etc., situated exclusively within the boundaries of any state, 
as such state has entire control over same. Commerce 
between the states is now to a great extent regulated by 
Congress through the Inter-state Commerce Commission, 
which was created by it for that purpose. 


[1:8:3] 


CIVIIv GOVE^RNMKNT OR 


56 


In the regulation of the commerce between the states 
Congress has wisely made the same entirely free, so that 
goods can be sent from any point in the .Union to any other 
point without being stopped to collect duties thereon on 
the borders of each state through which they may have to 
pass to reach their destination. And indeed, even if Con¬ 
gress did attempt to do sq the people would not tolerate 
the measure, but would rise up in righteous wrath and 
compel the repeal of same, even as they compelled the 
repeal of the embargo act, in 1809, by means of which 
Congress over-reached the power given it to regulate com¬ 
merce with foreign nations by attempting to prohibit it 
entirely. But on all import commerce with foreign nations 
there is usually a duty imposed, which is at times so high 
on some articles as to be prohibitive and low on others, 
or absent altogether, according to the whims and ideas 
of the party which happens to be in power. 

Congress has also the sole power to regulate all com¬ 
merce with the Indian tribes, and this whether such tribes 
are located entirely within the boundaries of a certain state 
or not. This was so provided for the reason that, as 
Indians still retaining their tribal relations are considered 
the wards of the nation, it should have exclusive control 
over them so far as the regulation of their commerce is 
concerned. Then, too, it was thought that this course 
would prove an additional safe-guard to secure peace and 
good-will between the Indians and the frontier settlers. 

CLAUSE 4- 

NATURALIZATION AND KANKRLU’TCY. 

To establish a uniform rule of naturalization, and uniform laws on the 
subject of bankruptcy, throughout the United States. 

Naturalization is the process by means of which one not 
born in this country becomes a citizen, not of any one of 

[1:8:4] 


THE UNITED STATES. 


57 


the states, but of the United States. Hence, as it is the 
United States alone tliat are concerned, with the exception 
of the party applying for citizenship, it is but right and 
just that its Congress should have exclusive control over 
same. 

A citizen of the United States is a member of its body 
politic, all of them taken together constituting the nation. 
All other persons are aliens, and if they wish to become 
citizens they must be naturalized. All persons born within 
the jurisdiction of the United States are of course its citi-' 
zens by virtue of their birth-right, with probably the excep¬ 
tion of Indians not taxed. But the student must not make 
the mistake so common among nearly all classes of people 
that the voter and citizen are synonymous, for they 

are not. As a matter of fact, perhaps not more than one- 
fifth of the citizens are voters, while by no means all voters 
are citizens of the United States. Thus, women and chil¬ 
dren, if possessing the necessary qualifications, are citizens, 
but as a general rule they are not voters. While, on the 
other hand, in most of the states, an alien may become a 
voter by residing therein for the period of one year, he 
having first declared his intention to become a citizen of 
the United States. 

Aliens may become citizens of the United States by com¬ 
plying with the naturalization laws of Congress, or by 
virtue of a special act passed by Congress for that purpose, 
but in no other way. To become a citizen under the nat¬ 
uralization laws two steps are necessary. The first is that 
the alien must declare his intention to become a citizen of 
the United States before the clerk of some state or national 
court of record, who thereupon gives him a certificate, 
commonly called his ^Trst papers,’^ which entitles him to 
take up a homestead of i6o acres if he so desires and also 
the protection of the United States while traveling in for- 

[1:8:4] 


5^ 


CIVIL GOVIvRNMKNT oR 


ei,2^n lands. 'J'his certificate may be taken cut the moment 
an alien arrives in this country, if he is so minded. I>nt 
this does not' make him a full-fled,e^ed citizen, l^efore he 
can l)ecome such he must have resided in the United States 
for at least five consecutive years, a: least two of which 
must have elapsed since he received his “first papers.’’ If 
he has complied with this requirement he will he entitled 
to take out his “second papers,” after which he becomes 
a fiill-liedged citizen and entitled to all the privilei^es and 
immunities of the same, so far as the national government 
IS concerned, with the exception that he cannot act as Pres¬ 
ident or Vdce-President of the LJnited States. These “sec¬ 
ond papers” can only he taken out during the term time of 
some United States or state court of record, and in open 
court, at which time and ])lace the ])rospective citizen must 
])rove that he has resided in this country at least five years, 
two of which have elapsed since lie took out his “first 
papers”; that he has been of good moral character during 
that time, and that he is “attached to the Constitution of 
the United States, and well disposed to the good order and 
na])piness of the same.’’ After this lias been done to the 
satisfaction of the court, he must renounce all allegiance 
to any foreign power, prince or potentate, and especially 
the one of which he was last a subject or citizen, and swear 
fealty to the United States, which completes his natural¬ 
ization and entitles him to his final certificate. Aliens who 
are made citizens other than by this method become such 
usually by virtue of a treaty or a si>ecial act of Congress. 
Thus, when the Louisiana territory was added to this 
country all the jieople residing therein, except probablv 
slaves and Indians not taxed, became by virtue of the treaty 
of ])urchase citizens of the United States. P)Ut it seems 
that the inhabitants ot our latest acquisitions, Porto Rico 
and the'Philippines, did not become citizens of the United 

l^i: 8:4] 


THE UNITED STATES. 


59 


States by virtue of the treaty of Paris. Just what their 
status is has as yet not been determined, though it appears 
that they hold the dual and seemingly contradictory status 
of citizen-subjects—that they are citizens to the extent that 
they can be taxed by Congress, but not to the extent that 
they can vote. Hence, if this is the case, the only way 
they can become citizens is by special act of Congress. 

Under this clause Congress also has the power to pass 
a uniform bankruptcy law. It seldom avails itself of this 
power, however, but leaves the matter to the several states. 
At the present time, nevertheless, there is a national bank¬ 
ruptcy law on the statute books, and consequently the 
insolvency or bankruptcy laws of the several states have 
to give way to it and remain inoperative until such time 
as the Congress may see fit to repeal it. The purpose of 
these laws, whether state or national, is to enable the cred¬ 
itors of an insolvent debtor to have him declared a bank¬ 
rupt and thus cause all his property liable for debt, so far 
as it goes, to be divided equitably between them ; and also 
to enable a debtor who feels that he is so overwhelmed with 
debt that he can never extricate himself to enter a petition 
of voluntary bankruptcy, and thus be freed from his old 
debts and be put in a position to commence business again 
on a new basis. There is an important difYerence, how¬ 
ever, between the state and national bankruptcy laws which 
should at this time be noted. This difference is, that the 
national bankruptcy laws free an insolvent from all his 
debts contracted previous to the time he is declared a bank¬ 
rupt by the United States courts, no matter whether they 
were contracted before or after the law went into effect, 
while those of the states can only free a bankrupt from the 
debts contracted after the date-the law went into effect. 

[1:8:4] 


6o 


ClVIIv GOVERNMENT OE 


CLAUSE 5. 

COINAGE, WEIGHTS AND MEASURES. 

To coin money, regulate the value thereof, and of foreign coin, and fix the 
standard of weights and measures. 

The rig-lit or power to coin money and regulate the value 
thereof is a prerog'ative of sovereig-nty, and hence naturally 
belongs to the United States. If such were not the case 
the monetary system of a nation would be in hopeless con¬ 
fusion and the commerce thereof practically paralyzed. 
For these reasons none of the states can coin money ^or 
regulate the value of money; nor can counties, cities or 
other municipal corporations; nor can individuals. And 
the only department of the United States government that 
can coin money and regulate the value thereof is Congress. 
All money coined without the authorization of Congress 
is counterfeit and illegal. The money of the United States, 
as is that of all civilized countries, is made of gold, silver, 
copper and nickel, and is ^Toined” by simply stamping on 
a piece of precious metal the value which it is intended 
to represent. It is commonly thought that greenbacks and 
all other paper which circulates as money is money, but 
such is not the case. They are simply promises to pay 
money, as are bank notes, checks, bank drafts, bills of 
exchange, etc. Everything that circulates as money in a 
country is called its currency. 

Congress has thus far not attempte.I to regulate the value 
of foreign coins, except the rate at which they shall be 
taken in satisfaction of taxes and duties. But in order to 
facilitate the transaction of business between this nation 
and foreign countries the great commercial centers main¬ 
tain a rate of exchange as near as may be to that of the 
money markets of the world. Foreign coins are not legal 

[1:8:5] 


The: united state:s. 6 i 

tender in this country for any amount, and hence need not 
be accepted in satisfaction of a debt unless the creditor 
chooses to do so. 

Congress has never availed itself of the power to fix the 
standard ofnveights and measures, but has left the matter 
entirely to the several states. The laws of all the states 
on this subject, however, with but slight exceptions, are 
tlie same, so that practically no inconvenience is felt in 
this respect for the want of a uniform national system 
•The only thing in this connection that Congress has done 
was to enact a law declaring the metric system of weights 
and measures'legal, but it did not declare that said system 
must be used to the exclusion of all others. It is perhaps 
at some future time, when the people have become familiar 
with it, the intention of Congress to make the metric, 
system the only legal system of weights and measures, as 
the tendency of all civilized nations is to adopt it as such, 
and in that event secure a uniform system of weights and 
measures throughout the world. 

CLAUSE 6. 
counte:rfeiting. 

To provide for the punishnient of counterfeiting the securities and current 
coin of the United States. 

Under this clause, which is naturally appendant and ap¬ 
purtenant to the last preceding one. Congress has the 
power to punish the counterfeiting of the coins, notes, post¬ 
age and revenue stamps, bonds, etc., of the United States, 
and has long since exercised it by making counterfeiting 
a crime which is punishable by fine or imprisonment, or 
both, in various degrees, according to the enormity of the 
offense. 


[i:8:6] 


62 


CIVIL GOVKRNMKNt 


CLAUSE 7. 

POST OFFICES AND POST ROADS. 
To establish post offices and post roads. 


It is hardly necessary to comment upon the value of the^ 
postal system which has been inang’urated by virtue of the 
laws passed by Congress under this clause, for the manv 
advantages emanating therefrom have been so beneficent 
and useful to the whole people, rich and poor, that they 
are plainly apparent. The postal system enables us to 
have friendly and business intercourse with distant people; 
it enables us to be in constant touch with the whole world 
through the medium of the press; it enables us to carry 
on our business transactions with greater ease alid safety 
than woifld otherwise be the case ; and all this in certainly 
a more efficient and cheaper manner than if the post offices 
and post roads were under the management of the several 
states or of private individuals. For two cents we can send 
a sealed letter to any point in the United States, or in 
Mexico or the Dominion of Canada. For but little more, 
because of treaties made to that effect, we can send similar 
letters to almost any point in the entire civilized world. 
Packages of nearly all kinds, if not too heavy, may be sent 
from one place to another for a mere Song. When we are 
desirous of sending money' or other valuables to a distant 
point, the post office, by means of its postal order and reg¬ 
istered letter system, enables us to do so, and this with 
perfect safety and at a very moderate expense. 

The fact will be at once recognized that such a stupen¬ 
dous business enterprise as the postal system of the United 
States has grown to be necessarily requires a great and 
complex organization to conduct the same. This is done 
through what is called the Postoffice Department, the head 

[1:8:7] 


TIIK unite:d states. 63 

of which, the Postmaster General, is a member of the Presi¬ 
dent’s cabinet, and is appointed by him with the advice and 
consent of the Senate. Under the Postmaster General and 
appointed by him, directly or indirectly, are many thou¬ 
sands of clerks, assistants, postmasters, mail clerks, mail 
carriers, inspectors, etc. The postmasters alone thus ap¬ 
pointed total about 65,000. About 2,000 of the most im¬ 
portant post offices, however, are filled by direct appoint¬ 
ment by the President. 

P>ecause of the authority vested in it by this clause Con¬ 
gress also has power to establish post roads. Generally, 
for the purpose of transmitting the mails, it has made use 
of roads already established by the states or by corpora¬ 
tions existing under their laws. These, whether they are 
on land or water, are first selected for their fitness and 
declared to be postal roads before they can be used as such. 
But Congress has established some post roads. Among 
those in the nature of highways it has thus established is 
the Cumberland road from the Potomac to the Ohio, and 
among those in the nature of railways are the Union Pacific 
and Central Pacific, together making one line, and the 
Southern Pacific and the Northern Pacific. These rail¬ 
ways, in addition to being established postal roads, are also 
United States military roads. But none of them were built 
by the United States directly, but by incorporated com¬ 
panies under its authority, they having been assisted by it 
with money and bonds. 

CLAUSE 8. 

COPYRIGHTS AND PATENTS. 

To promote the progress of science and useful arts, by securing, for limited 
time.s, to authors and inventors the exclusive right to their respective writings 
and discoveries. 

Nowhere in the Constitutic>n does the wisdom and fore¬ 
sight of its framers shine out with a more brilliant light 

[1:8:8] 


64 


civiiv gove:rnme:nt or 


th^n from this clause. While in the very midst of the tur¬ 
moil and strife over the conditions under which the new 
government they were contemplating should loave political 
life, they suddenly stopped momentarily from their labors, 
as if struck by a magical thought, and inserted this clause, 
realizing that no nation, however beautiful and frictionless 
might be its political machinery, can be truly great unless 
it takes the sciences and the arts under its fostering care. 
And when we consider, too, how poorly ‘these ends would 
have been secured had the matter been left entirely to the 
states, in which it was inherent until taken away by tliis 
clause, by reason of each of them having different laws on 
the subject, the wisdom of the insertion of same becomes 
exceedingly plain. 

By virtue of the laws of Congress made under the au¬ 
thorization of this clause authors can secure copyrights on 
their works for a period of twenty-eight years, and for an 
additional period of fourteen years if the application for 
renewal is made more than six months prior to the date 
on which the original copyright expires. By obtaining a 
copyright, which is done through the librarian of Congress, 
an author has the exclusive right during the term of its 
existence to publish his work in whatever manner he 
wishes, and to sell the same anywhere in the United States. 
A copyright is personal property, and hence may be sold 
and inherited in the same manner as other personal prop¬ 
erty, with the qualification that a sale of a copyright to be 
binding must be registered in the office of the librarian of 
Congress. Inventors, too, under the patent laws of Con¬ 
gress, are enabled to secure to themselves the exclusive 
right to manufacture and sell any new and useful invention 
that may have been the product of their genius. But no 
patent can be had for an invention unless it is really a new 
one, or an improvement on an old one. Patents are 


[i:8:8] 


the: UNITe:d states. 


65 


granted through the patent office, a sub-department of the 
Department of the Interior, for the term of seventeen years, 
and can be extended on application for seven years more. 
Patents, like copyrights, are personal property and may be 
sold and inherited. An inventor who wishes to secure his 
invention, but needs time to perfect it before applying for 
a patent, can upon application obtain a caveat, which serves 
this purpose for the period of one year. All patented arti¬ 
cles must have the word ‘‘patented,” with the date of the 
patent, affixed to them in some manner. And, in order 
to preserve ^the validity of a copyright, every copy pub¬ 
lished must give notice that it was “entered according to 

the act of Congress, in the year . . . ., by., 

in the office of the librarian of Congress, at Washington,” 
or, at the option of the holder of the copyright, the words: 
“Copyright, 19. ., by.” 


CLAUSE 9. 

FEDERAL COURTS. 

To constitute tribunals inferior to the Supreme Court. • 

A Supreme Court of the United States is provided for 
by Article III., Section i, of this Constitution, and hence 
can neither be created nor abolished by Congress, as is the 
case with all other United States courts. However, subject 
to the limitations of the Constitution, Congress may at its 
pleasure fix the number of justices thereof, as well as their 
salaries, and define their duties. 

Under this clause Congress has thus far organized and 
defined the powers and jurisdiction of the following inferior 
courts: United States circuit courts of appeals, one in each 
of the nirie judicial circuits of the nation; United States 
circuit courts, which hold at least one session in each state 


5 


[1:8:9] 




66 


CIVIL COVLRNMLnT or 


annually; United States district courts, with one to three 
or four districts in each state; one United States court of 
claims ; a supreme court of the District of Columbia; and 
territorial courts "in each organized territory. The two 
latter classes of inferior courts, however, are not, strictly 
speaking, United States courts, but only local courts hav¬ 
ing limited jurisdiction ; but as they were established under 
the authority reposed in Congress by this clause, it was 
thought best to mention them. The court of claims was 
established for the purpose of hearing and determining all 
claims against the government, and it is the onlv court in 
which the Ujiited States permits itself to be sued. All the 
other United States courts, the Supreme Court included, 
are courts of record; that is, they are judicial tribunals 
having attributes and exercising functions independent of 
the judges designated to preside over them, and proceeding 
according to the course of the common law. In them are 
tried all cases arising under the laws of the United States, 
and also certain controversies of a civil nature in which a 
state or the citizens of different states are concerned. The 
United States district and circuit courts are what is known 
as courts of original jurisdiction. The other two are, gen¬ 
erally speaking, courts of appeals. The judges of the 
United States courts are appointed by the President, with 
tlie consent of the Senate, and hold office for life, or “dur- 
ing good behavior.” 


CLAUSE 10. 

PIRACIES, PUNISHMENT OF. 

To define and punish piracies and felonies committed on the high seas, 
and offenses against the law of nations. 

^Tiracy is robbery or forcible depredation upon the high 
seas, without lawful authority, done aninio fiirandi, and in 
the spirit and intention of universal hostility.” By the 

[i:8;io] 


THI^ UNITE:d states. 


67 


passive but common consent of all civilized nations one 
who practices piracy is an outlaw and a common enemy to 
humankind. Pirates are not entitled to the protection of 
the nations of which they are citizens, but may be captured 
by the forces of any nation and punished without trial. 
The universal punishment for piracy is death. But piracy, 
in order to be punished by the United States or any other 
nation, must have been committed on the “high seas’’; that 
is, on the waters of the ocean beyond low water mark. 
Within that limit the nearest state has jurisdiction, and all 
piratical depredations committed therein are punishable 
only under the laws of such state. 

Felonies are such crimes as are punishable by death or 
by imprisonment in a state or national prison. When com¬ 
mitted on the high seas they are punishable by the courts 
of the nation on the shores of which the ship having the 
felon on board first lands. When committed within low 
water mark they are punishable by the courts of the nearest 
state. The term felony includes such crimes as murder, 
manslaughter, burglary, larceny, arson, mayhem, etc. 

The law of nations, commonly called “international law,” 
consists of those rules which regulate the conduct and 
mutual intercourse of independent Christian states with 
each other through reason and the sense of natural justice. 
These rules must be observed by all civilized nations, the 
United States included, and by the citizens or subjects 
thereof. And it is no excuse to any such nation that it 
did not have laws to compel its citizens or subjects to fulfill 
their duties to other nations. It is its business to have 
such laws, and if it fails therein it must bear the burden 
of settling any injury that may have been done thereby. 
Therefore, in order that the United States may be in a 
position to as much as possible refrain from trespassing on 
the law of nations and also keep its citizens from doing so, 

[i; 8;lo] 


68 


civiiy govi:rnmknt or 


it is very apparent that Congress and not the states should 
have all needed power to enact laws compelling the due 
observance of same. 


CLAUSE II. 

POWER TO DECLARE WAR. 

To declare war, grant letters of marque and reprisal, and make rules con¬ 
cerning captures on land and water. 

The power to declare war is one of the highest attributes 
of sovereignty. Even under the Articles of Confederation 
the people, in spite of the fear and jealousy with which they 
regarded the general government at that time, saw the 
necessity of vesting this power in the Continental Congress. 
The only question then is, should this power be exercised 
by the Legislative or by the Executive Department of the 
United States. The right to declare war belongs to the 
sovereign. In monarchies the executive is the sovereign 
and consequently has the power to declare war; but who 
is the sovereign in the United States ? Surely not the Pres¬ 
ident: and then, too, it would be dangerous and incom¬ 
patible with the institutions of a republic to entrust such 
powers in his hands. No; the people of the United States 
constitute the sovereign, and hence it is the people that 
through their Congress have the pov^er to declare war. A 
formal declaration of war, however, is not necessary to 
commence the same, though among civilized nations it is 
usually the custom to make one. Open acts of hostility 
are enough. But in making peace Congress directly has 
but a partial voice, as it is entered into by the President 
with the advice and consent of the Senate; but indirectly 
it can, if it so chooses, stop a war in which the United 
States may be engaged by refusing longer to appropriate 
money to carry on the same. 




The united states. 


69 


A letter of marque and reprisal is a commission issued 
to a private vessel, commonly called a privateer, to go 
beyond the boundaries of the nation commissioning it and 
seize the vessels of its enemy. Privateers, in order to prove 
that they are not pirates, must always be able to show their 
letters of marque and reprisal. The chief difference which 
distinguishes privateers from vessels of the regular navy is 
that they are fighting solely for the sake of plunder, the 
owners or managers of a privateer being entitled to all of 
the enemy’s property they can capture, and are controlled 
only by the terms of their commissions, while vessels of the 
regular navy are always under the direct control of their 
own government, and in command of a responsible officer, 
and the plunder which they take is divided among the 
officers and men. This plunder, whether taken by regular 
war vessels or by privateers, is called prizes, and in either 
case must be brought into an American port, and all ques¬ 
tions as to the legality of their capture determined by some 
district court of the United States. If they are declared 
legal, they are sold under the authority of the court and 
the proceeds of such sale distributed among the officers 
and men, according to law, in case the capture was made 
by a regular war vessel; or if it be a privateer that took 
the prize, to her owners or managers. If the capture is 
not legal, however, then it must be returned to the party 
having the best title thereto. 

Captures of the public and private property of an enemy 
may also be made on .land. But in this event, however, 
the property goes to the government of the United States, 
and not to the soldiers capturing it. All questions as to 
the legality of these captures are also decided by the district 
courts of the United States, as in the case of prizes. 


[i:8:ii] 


70 


civiiv gove:rnme:nt Ol ? 


CLAUSE 12 . 

POWER TO MAINTAIN ARMIES, 


To raise and support armies; but no appropriation of money to that use 
shall be for a longer term than two years. 

The power reposed in Congress to raise and support 
armies is a sovereign power necessarily appurtenant to that 
of declaring war. To carry on war a nation must have 
armies, and it must have a means’ of raising and supporting 
the same. If it has not this power, it would be practically 
impossible for it to conduct an effective . war, and hence 
would justly earn for itself that which it would receive,— 
the contempt, disrespect and insults of other nations and 
the disgust and dissatisfaction of its own people. 

But there is a limit to all things, and there is a limit in 
the matter of armies beyond which we as a nation had not 
'ought to go. Our isolated position from the warlike na¬ 
tions of Europe; the very nature of our institutions, which 
were designed, not for purposes of conquest, but for 
the purpose of harboring and perpetuating the spirit of 
liberty; the utter incompatibility of a standing army with 
the foundation principles upon which our government was 
builded,—all convinced the fathers fully that a large stand¬ 
ing army should not be ours. They believed that an army 
sufficiently large to insure domestic quiet and peace and 
to protect the frontier settlers from the depredations of the 
Indian hordes, was all that the nation needed during pe¬ 
riods of general quiet, and that if any great emergency 
arose she could safely entrust her destinies to the patriot 
hearts of her sons. They had also learned from that in¬ 
exorable and iron-hearted teacher, experience, that a large 
and devpted army in the hands of an ambitious and un¬ 
scrupulous general or master is the most dangerous enemy 


[1:8:12] 


The: united states. 


71 


a free government can have. So to guard against all these 
things they qualified the power of Congress to raise and 
support armies, by providing that no appropriation of 
money to that use shall be for a longer term than two 
years. Under this wise provision it is impossible for any 
party to fasten upon the country a large regular army and 
support the same for a period of time long enough to 
allow it to become dangerous, for if it shows symptoms 
of desiring to usurp the rights of the people it can be 
effectually abolished on short notice by their refusing to 
support it longer. Owing, perhaps, in part, to the wisdom 
of this prgyision, the United States have never had the 
humiliating experience of having the existence of the 
government threatened by their army, as have had sev¬ 
eral other republics, nor are they likely to ever have so long 
as this provision remains unchanged and unrepealed. 

CLAUSE 13. 
the navy. 

To provide and maintain a navy. 

It will be seen that in authorizing Congress to provide 
for and maintain a navy the Constitution does not, as is 
the case with the army, limit the period for which appro¬ 
priations for its maintenance can be made. This is for 
two general reasons: First, it takes time to build up a 
navy, whereas an army can be quickly collected and 
equipped, and therefore it is necessary to always have a 
considerable one on hand to protect our commerce in times 
of peace and to protect our coasts and troop ships in times 
of war, as well as to annoy and disable the enemy as much 
as possible. And sebond, never yet has there been a nation 
that was deprived of its liberty through the instrumentality 
of its navy, and it is not at all probable that there ever will 
be one. 


[1:8:13] 


72 


CiVIIv GOVE^RNMKNT OR 


CLAUSE 14. 

ARMY AND NAVY REGULATIONS. 

To make rules for the government and regulation of the land and naval 
forces. 

The power conferred on Congress by the last three pre¬ 
ceding clauses to make war and to raise, organize and 
maintain armies and navies, also implies the power to gov¬ 
ern such armies and navies. If this was not the case, then 
all the armies and navies it could organize and equip would 
be practically useless. Hence, Congress is by virtue of 
this clause expressly given the power to make rules for the 
government of our army and navy. All rules that are 
made for the government of the army are called army 
regulations, and constitute that branch of the law known as 
military lazv; while those governing the navy are called 
navy regulations, and constitute that branch of the law 
known as navy lazv.. But the student must not confound 
these two branches of the law with that branch called mar¬ 
tial lazv, for they are not at all the same, as is supposed to 
be the case by many. Military and navy law is the govern¬ 
ment of armies and navies; martial law is the government 
by armies and navies. These army and navy regulations 
prescribe the duties of all military and naval officers, as 
well as of common soldiers and seamen, and provide pen¬ 
alties for a failure to comply with the same. If the offense 
is trifling, the officer in command may reprimand the cul¬ 
prit or put him under arrest, without trial, for a period 
not exceeding ten days. But if the offense is of a serious 
nature, the trial must be by court-martial, which is a reg¬ 
ularly organized tribunal having jurisdiction over all of¬ 
fenses against the military and naval laws. Insubordination 
and disobedience to orders by a soldier or sailor are crimes 


[1:8:14] 



the: unite:d state:s. 73 

punishable by court-martial, as is also ^^conduct unbecom- 
ing* a g'entleman’^ in an officer, as well as his refusal to pay 
his just debts. Courts-mgrtial have, like courts of the 
common law, the power to inflict the death penalty, though 
they seldom exercise it unless the of¥ense committed is 
extremely grave. But the President can pardon or com¬ 
mute the sentence of any person convicted by court-martial. 
The object for the establishment of courts-martial is to 
deal out justice to soldiers and sailors, and in times of war 
to civilians in the affected districts, also, in a more sum¬ 
mary and speedy manner than would be possible in a court 
of law. " 


CLAUSE 15. 

THE MILITIA. 

To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections and repel invasions. 

The militia of the United States are its citizen-soldiers. 
By act of Congress the militia has been declared to be ^^all 
•citizens and those who have declared their intention to 
become such, between the ages of eighteen and forty-five,’’ 
and are liable to be called out to perform military duty 
by the President at any time. The term ^^citizens,” as used 
m said act, means all male citizens; female citizens are not 
required to perform military duty. These include the un¬ 
organized militia, as well as the organized companies, battal¬ 
ions, regiments, etc., of the several states, known as the or¬ 
ganized militia. For reasons hereinbefore mentioned the 
framers of the Constitution were decidedly averse to a large 
standing army, and so placed their whole confidence in the 
ability of the citizen-soldiery of the nation to meet and over¬ 
come all her difficulties. And whether this confidence has 
been justly merited or not, let the voices of an hundred 
glorious victories proclaim. 


[1:8:15] 


74 


CIVIIv GOV^RNMl^NT Ol? 


This clause gives Congress the power to provide for the 
calling out of the militia for the accomplishment of but 
three purposes, and no others: The execution of the laws 
of the nation, the suppression of insurrections and the re¬ 
pulsion of invasions. For similar purposes each of the 
states may also call out its own militia. Under the laws of 
Congress, however, the President alone can call out the 
militia of the United States, and this he mav do at his dis¬ 
cretion as to the number, and from any or all of the states, 
as may be most convenient. This is done by issuing a 
call to the governor of the state from which a certain num¬ 
ber of militiamen is required, whose duty it then is to raise 
the number called for by the President from his state. But 
if for any reason a state does not furnish the number of 
men required of it, then the government has the power to 
raise them by conscription, or, as it is commonly called, 
by drafting. The last time the government was compelled 
to draft men for military purposes was during the Civil 
War. 

Thus far the national militia has been called out but three 
times: in the whisky rebellion of 1794, to enforce the laws 
of the United States; in the War of 1812-14, to repel in¬ 
vasion ; and in the Civil War, to suppress insurrection. 
All our other wars, the late Spanish-American war and 
our recent unpleasantness in the Philippines included, 
have been carried on by the government by means 
of the small regular army maintained under the pro¬ 
visions of Clause 12, assisted by regiments or com¬ 
panies of volunteers who have tendered their services to 
the government for a longer or shorter time. These vol¬ 
unteers do not constitute a part of the regular army, nor 
can it be said that they are called out as militia, for they 
offer their services to the government voluntarily and of 
their own volition. But it can be said to the everlasting 


[1:8:15] 


TIIK UNITED states. 


75 


glory and patriotism of the American volunteer that all our 
great wars, as well as our smaller ones, were fought and 
won chiefly by his aid. 


CLAUSE i6. 

I 

ORGANIZATION OF THE MILITIA. 

To provide for organizing, arming and disciplining the militia, and for 
governing such part of them as may be employed in the service of the United 
States, reserving to the states respectively, the appointment of the officers and 
the authority of training the militia according to the discipline prescribed by 
Congress. 

The power given Congress by this clause to prescribe 
rules and regulations for organizing, arming and drilling 
the militia and for the government of such part of the same 
as may be in the service of the United States, is as neces¬ 
sary to make the last preceding clause effective as it is that 
Congress should have the power to prescribe rules for the 
regulation and government of the regular army, and for 
the same reasons. But when not in the service of the 
United States, the militia of each state is subject to the 
laws of such state only, and is governed by its own officers, 
except that the rules for organizing, arming and drilling 
same may at any time be prescribed by Congress, though 
carried out by the state. A state’s organized militia usually 
consists of one or more regiments, each having its own 
regimental and company officers. When these regiments 
or companies are mustered into the service of the United 
States, they are in turn formed into brigades, divisions and 
army corps, over which are officers appointed by the Pres¬ 
ident, but the regimental and company officers still retain 
their positions. Both the militia and volunteers, when in 
the service of the United States, are subject to the army 
regulations like the United States regulars. The navy may 

[i: 8: i6] 


76 


CIVIIv GOVERNMENT OE 


also be increased, but only by volunteers. Congress has 
no power to call on the militia or raise men by conscrip¬ 
tion for this purpose. Volunteers on entering the naval 
service of the United States are subject to the navy regu¬ 
lations like the regular sailors. 

CLAUSE 17. 

POWER TO LEGISLATE EXCLUSIVELY. 

To exercise exclusive legislation in all cases whatsoever, oVer such district 
not exceeding ten miles square as may, by cession of particular states, and the 
acceptance of Congress, become the seat of government of the United States, 
and to exercise like authority over all places purchased by the consent of the 
legislature of the state in which the same shall be, for the erection of forts, 
magazines, arsenals, dockyards, and other needful buildings. 

We have hereinbefore seen that Congress, as a general 
rule, can exercise only such authority as is expressly or 
impliedly delegated to it by the Constitution (see page 49). 
But there are a few places over which its rule is supreme, 
and is in no way or but slightly limited by the Constitution. 
These places are: The District of Columbia, in which the 
seat of government is located; all forts, magazines, dock¬ 
yards, arsenals and other needful buildings the jurisdiction 
over which has been ceded to the government by the sev¬ 
eral states; all territories belonging to the United States; 
tile waters of the ocean between low water mark and three 
miles beyond, including all bays, gulfs and inlets; on board 
United States naval vessels anywhere; and on board United 
States merchantmen when at sea, but not when in a foreign 
port. 

When the Constitution was framed the United States had 
no permanently fixed capital, though the need of a site for 
one was deeply felt; and in anticipation of the United States 
being presented with one in the not disiant future, the 
framers of the Constitution, with their customary foresight, 
[1:8:17] 


THK UNITED STATES. 


77 


provided for its government by this clause. And they did 
not have long to wait before their anticipations became a 
reality, for in 1790 the states of Maryland and Virginia 
together ceded to the national government a tract of land 
on the banks of the Potomac just ten miles square. This 
was named the District of Columbia, and, in 1800, after the 
proper buildings had been reared in which to carry on the 
business of the nation, the seat of government was removed 
there. The District of Columbia, however, now contains 
only about seventy square miles, as all that portion of it 
lying on the Virginia side of the Potomac was re-ceded to 
that state in 1846. 

Congress, in the exercise of its supreme legislative au¬ 
thority over the District of Columbia, at the present time 
governs it through three commissioners who are appointed 
by the President, but who are under its direct control. It 
has also power to levy and collect taxes on all taxable 
property found within the district and which is not owned 
by the government itself. But unlike the states, the dis¬ 
trict has no representation in Congress, nor is it entitled 
to any. Neither can its people vote for presidential elec¬ 
tors. In other words, the people of the district have no 
voice in their own government. This condition at first 
glance seems unjust, but then we must consider that the 
apparent rights of the few must give way to the welfare and 
happiness of the many. The only way this inequality can 
be removed would be for Congress to either create a sepa¬ 
rate state out of the district or cede it back to its donor, 
Maryland. But to do either of these would be to defeat 
the object for which the district was originally formed, and 
surely common sense, coupled with the love of self-preser¬ 
vation, would suggest that this should not be done. Even 
the most zealous advocate of state rights can do no less than 
admit that the national government had ought to be su- 

[1:8:17] 


CiVIIv govErnme:nt ot ^ 


7« 

preme in its capital. In this way only can it guard itself 
from insult and effectually protect the public buildings and 
records from total destruction, or at least from grievous 
injury. As the district is now constituted every able-bodied 
man residing therein, except the civil officers of the gov¬ 
ernment, is subject to the President’s immediate call to 
arms, and thus in the course of a few hours at the utmost 
a considerable army of defense could be raised should occa¬ 
sion require it. But if the nation had to rely solely upon 
the militia of the several states to protect its seat of gov¬ 
ernment, much more time would be required in which to 
bring the necessary number of men to the scene of action, 
and hence the relief might come too late to be of avail. 
For these reasons the wisdom of the present system is 
plainly apparent. 

The propriety of the provision that Congress shall have 
exclusive legislative authority over its forts, arsenals, etc., 
is also too obvious to need further comment. But before 
this desirable end can be attained, the consent of the state 
in which such magazines, forts, etc., may be located must 
be first had and received. Thus far the states have will¬ 
ingly ceded to the national government all places situated 
within their respective borders and desired for these pur¬ 
poses, reserving only to themselves the right to serve all 
state processes, both civil and criminal, within the ceded 
territory, in order that these places might not become 
harbors of refuge for fugitives from justice. But all crimes 
committed within the limits of the ceded territory, however, 
must be tried in the United States district courts, though 
according to the laws of the state in which it is situated. 

These forts, arsenals, etc., in addition to being under the 
exclusive jurisdiction of Congress, are also made by the 
acts of cession the property of the United States. This is 
quite different from the condition of things in the District 


[i:8:17] 


The united states. 


79 


of Columbia, where the United States has exclusive juris¬ 
diction, but has no property rights, except so far as the 
public grounds and buildings are concerned. And it is 
also quite different from the interest the government has 
in its unsold public lands, over which it has no more juris¬ 
diction than over the several states, but which it owns in 
the same manner as does a private individual, except that 
such lands are exempt from taxation. 

CLAUSE i8. 

"INCIDKNTAD OR IMPLIED POWERS. 

To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other power.\ vested by this Constitu¬ 
tion in the government of the United States, or in any department or officer 
thereof. 

Under this clause Congress is given the right to pass all 
laws which may be necessary and proper for carrying into 
execution the powers given it by this Constitution, and 
also all laws which may be necessary to carry into effect 
all powers vested by it in the other departments of the 
government, or which may be necessary to provide for the 
common defense or general welfare of the people. But it 
is a mistake to think that this clause grants to Congress 
any powers which it would not have otherwise had. Its 
only object, to us^ the words of a great jurist, is to merely 
afford an express “declaration to remove all uncertainty, 
that every power is to be so interpreted, as to include suit¬ 
able means to carry it into execution.’^ Had the Consti¬ 
tution failed entirely to expressly give Congress the power 
to pass such laws, yet its right to do so would have been 
implied, for surely common sense would suggest that a 
government should be able to make all laws necessary to 
carry into effect the very objects that gave it birth. And 
in addition to such being the common sense view of the 

[i:8:i8] 


8o 


CIVIIv GOVERNMENT OE 


matter, it is also a sound rule of law which has been sus¬ 
tained by innumerable affirmative, but without a single dis¬ 
senting decision; and this for the reason that as it is im¬ 
possible for the framers of any government to foresee all 
emergencies that may arise and expressly provide for them 
in advance, such government, as a necessary ingredient to 
its very existence, must‘have the implied general right to 
do all that may be needed to carry the powers granted it 
into effect. But in no case can Congress make laws rela¬ 
tive to matters concerning which it is forbidden by the 
Constitution to legislate; or which are expressly reserved 
to the states; or which have not been expressly or im¬ 
pliedly granted to it. 


SECTION 9. 

PROHIBITIONS ON CONGRESS. 

From the last section we learned of some of the laws 
which Congress is expressly or impliedly authorized to 
pass; from this section we are to learn of some of the laws 
which Congress is expressly prohibited from passing. In 
either event, if it oversteps its bounds, its action will be void 
ah initio and cannot be enforced. 

CLAUSE I. 

THE SLAVE TRADE. 

The migration or importation of such persons as any of the states now 
existing shall think proper to admit, shall not be prohibited by the Congress 
prior to the year one thousand eight hundred and eight, but a tax or duty 
may be imposed on such importatic«i, not exceeding ten dollars for each head. 

At the time of the adoption of the Constitution slavery 
was still a lawful institution in the United States, though 
the trade in slaves had previously been abolished in ten of 


[1:9: i] 


THE UNITED STATES. 81 

them, leaving only North Carolina, South Carolina and 
Georgia dealers in slaves. These states insisted that some 
sort of a guaranty be given them that their slave trade 
would not be disturbed for a time at least, the outcome of 
which was a compromise to the effect that their traffic in 
this respect should not be molested until 1808, or 
until a later date if Congress so chose. But Congress did 
not choose to allow the importation of slaves after the date 
limited in the Constitution, and hence on the first day of 
January, 1808, a law went into effect prohibiting the same. 
The tax authorized by this article was never imposed. It 
will be seen that the framers of the Constitution disliked 
to tarnish that instrument with the use of the word ^^slaves,’^ 
and so used the word ^‘p^^sons’^ instead. 

As slavery and the slave trade has been abolished by the 
XIII. Amendment, this clause is now obsolete and of inter¬ 
est only from the standpoint of history. 

CLAUSE 2. 

THE WRIT OF HAP.J^AS CORPUS. 

The privilege of the writ of habeas corpus shall not be suspended, unless 
when in cases of rebellion or invasion the public safety may require it. 

The writ of habeas corpus is the remedy the law gives for 
the enforcement of the civil right of personal liberty. It is 
considered the great “bulwark of liberty” and the best and 
only sufficient defense of personal freedom. By means of it 
any person who believes that he is illegally imprisoned can 
be set free by applying to any judge or court commissioner 
of any court of record in the United States, if the person 
having him in charge cannot show a legal warrant or other 
authority for his detention. Wherever this writ is not in 
suspension it is almost impossible for any one to be un¬ 
justly imprisoned for a considerable length of time, and 
that either by an officer or by a private individual. 

6 [1:9:2] 


^2 


ClVITv Covernmi^nT Ol- 


But however valuable this great prerogative writ is 
thought to be as a means of defending the personal liberty 
of the people, yet in times of rebellion or invasion it may be 
suspended if the safety of the public requires such a course. 
The power of suspending this writ reposed originally in the 
judgment of Congress, and was exercised by it for the first 
time in i86i. But in 1863 Congress gave the President 
power to also suspend it whenever in his judgment the pub¬ 
lic safety required such a course. In several instances gen¬ 
erals have taken upon themselves the authority to suspend 
it, but whether their acts were legal or not is questionable. 
But in no case do the courts allow the privilege of this im¬ 
portant writ to be suspended except in that part of the coun¬ 
try actually invaded, or in such a state of war as to obstruct 
the action of the regular courts. 

The reason that the privileges of this writ are allowed to 
be suspended in cases of invasion or rebellion is because at 
such times the public safety demands that the officers of the 
government be permitted to arrest and imprison any sus¬ 
pect without a warrant or other legal authority, and because 
at such times the civil law wholly or partially gives way to 
its more summary sister, martial law. 

CLAUSE 3. 

BILLS OF ATTAINDER AND EX TOST FACTO LAWS. 

No bill of attainder or ex post facto law shall ever be passed. 

A bill of attainder is a legislative enactment which inflicts 
punishment without trial. Several centuries ago it was used 
commonly by the English parliament, and served as a means 
by which the party that happened to be in power wreaked 
its vengeance upon its opponent by executing or imprison¬ 
ing the leaders thereof and depriving them of their honors, 
property and titles, and corrupting their blood so that their 

[1:9: 3] 


I'nt UNITI^D STATES. 


83 


descendants could not inherit property from or through 
them. The wisdom of this prohil)ition can be seen at a 
glance, for had Congress still the power to pass bills of 
attainder, each great political upheaval would no doubt be 
followed by scenes as unholy as ever marked the wake of a 
Cromwell or a Sulla. 

Other objections to bills of attainder are that by means 
of them the accused is convicted without trial and often 
without even the privilege to appear and defend himself, 
which mode of procedure is utterly antagonistic to the fun¬ 
damental principles of our government; and that by means 
of them a legislative body takes upon itself the performance 
of acts in their nature purely judicial. It is well and right 
that a legislative body, under proper restrictions, should 
have the power to try political offenses such as might merit 
impeachment, but to permit it to usurp the office of an or¬ 
ganized judicial body by depriving one without due process 
of law of the personal rights so dear to every American 
heart,—life, liberty and property,—could never for an in¬ 
stant be tolerated in the American Union, else the govern¬ 
ment created would mock its creators. 

An ex post facto law is one which inflicts punishment for 
the commission of an act not punishable by the laws in force 
at the time it was committed; or which changes the rules 
of evidence in such a manner as to allow conviction on less 
or different testimony than was the case at the time of the 
commission of the act; or which inflicts greater punishment 
on an offender than was prescribed at the time the offense 
was committed. This, however, applies to the criminal laws 
only, and not to the civil laws. A civil law may be retro¬ 
active in effect and still not be in violation of this clause of 
the Constitution. Nor are laws which in any manner make 
the penalty of a certain offense less than it was at the time 
the act was committed, in violation of same. Had it not 


[1:9:3] 


84 


civiiv gove:rnmknt or 


been for this prohibition the right of personal liberty would 
to a great extent have been defeated and one of the great 
objects for which the Constitution was framed set at naught. 

The state legislatures are also forbidden to either pass 
bills of attainder or ex post facto laws (Section lo, Clause i, 
this Article). 


CLAUSE 4- 

DIRECT TAXES. 

No capitation or other direct tax shall be laid, unless in proportion to the 
census or enumeration hereinbefore directed to be taken. 

A capitation or poll tax is a tax levied upon all individuals 
of a certain class equally, without regard to position or 
wealth. 

This clause was originally inserted as a concession to the 
slave states to prevent the levying of a capitation- tax on 
two-fifths of the slaves who would otherwise have been 
subject to it, as they and all Indians still retaining their tribal 
relations were excluded in the enumeration taken to deter¬ 
mine the representative population under Clause 3, in Sec¬ 
tion 2, as it was originally framed. But since the abolition 
of slavery this clause is of very little practical importance, as 
the representative population of the nation now consists of 
the whole number of persons under the jurisdiction of the 
United States, excluding Indians not taxed. 

No capitation or poll tax has ever been levied by the 
United States. 


CLAUSE 5- 

DUTIES ON EXPORTS. 

No tax or duty shall be laid on articles exported from any state. 

An export tax or duty is an indirect tax laid on certain 
goods or property transported out of one state or territory 
11:9:4-5] 


the: unite:d states. 


85 


and into another (states as between themselves are consid¬ 
ered foreign conntries), or out of the United States. By 
prohibiting the levying by Congress of an export duty, as 
in this clause provided, the framers of the Constitution 
aimed to accomplish at least one, and in all probability two, 
objects. The first of these was to avoid the business pros¬ 
tration and petty jealousy existing under the Confederation 
by preventing any discrimination in favor of a certain state 
or section as against the remaining states or sections. The 
second was to encourage home production by enabling the 
people of t]ie United States to compete the more readily in 
all articles raised or produced by them with the people of 
foreign nations, as the effect of an export tax is to raise the 
price of commodities exported and thus discourage home 
production. But as to this latter object there is some dis¬ 
pute, it being maintained by many that the aim of this clause 
is to prevent discrimination against any state or section 
only, and hence that Congress can levy an export duty on 
goods exported from the United States. The question has 
not as yet been decided by the courts, as Congress has 
never attempted to levy an export duty of any kind on 
goods exported from any state, but the better opinion, and 
the one that would in all probability be sustained, is that 
this clause, in addition to prohibiting Congress from laying 
a duty on articles exported from one state or section into 
another state or section, also prohibits it from laying an ex¬ 
port duty on articles exported from any of the United States 
to a foreign country. It would seem, however, that Con¬ 
gress has the right to levy duties on articles exported from 
any of the territories belonging to the nation, and this 
whether they are exported to any of the states or other 
territories of the United States or to foreign countries. 


[i: 9:5] 


86 


ClVIIv GOVKRNMKNT or 


CLAUSE 6. 

COMMKRCIAL RKSTRICTIONS. 

No preference shall be given by any regulation of commerce or revenue 
to the ports of one state over those of another; nor shall vessels bound to or 
from one state, be obliged to enter, clear or pay duties in another. 

One of the principal causes of the Revolutionary War was 
the persistent efforts of Great Britain to in every conceiv¬ 
able manner restrict the commerce of the colonies in order 
that the merchants of the home-land might he favored at 
their expense. Therefore, when the fathers had gained their 
independence and turned their attention toward the estab¬ 
lishment of onr present government, they determined that 
it should not make the mistake in this respect that Great 
Britain did, but that the commerce of each state should be 
on an equal footing, and that Congress should be prohibited 
from giving the commerce of one state any preference over 
that of another. Hence, to attain that end they declared 
through Clause i, Section 8, this Article, that ‘‘All duties, 
imposts and excises shall be uniform throughout the United 
States.” But still they were not content with their work. 
They feared that said provision might prove too general 
and afford Congress a loophole through which it could still 
discriminate in favor of one state or section as against the 
remaining states or sections. So to make “assurance doubly 
sure” they inserted this clause, the effect of which is to pre¬ 
vent discrimination and to establish virtual free trade be¬ 
tween the states, and an exceedingly wise and beneficent 
provision has it proven to be. 

CLAUSE 7- 

APPROPRIATIONS AND ACCOUNTS OF PUP.ITC FUNDS. 

•No money shall be drawn from the treasury, but in consequence of ap¬ 
propriations made by law; and a regular statement and account of the receipts 
and expenditures of al! public money shall be published from time to time. 

The great object for the accomplishment of which this 
clause was inserted is to prevent frauds on the government 
11:9:6-7] 


th^ unite^d states. 


87 


treasury, by requiring that no money shall be drawn there¬ 
from unless the same has been authorized by the accredited 
representatives of the people; and to increase the feeling of 
responsibility of those officers whose business it is to receive, 
handle and pay out the people’s money, by requiring that 
from time to time they shall furnish Congress and the people 
with a regular statement and account of the nation’s receipts 
and expenditures. Of course, this does not prevent all 
frauds, but it makes their accomplishment much more diffi¬ 
cult by rendering them liable to detection. The provisions 
of this clause are in entire harmony with the one which 
empowers Congress to raise money to defray the expenses 
of government. 

Another object for inserting the above, and one which no 
doubt had great weight with the fathers, was to prevent an 
abuse which has often been practiced by the executives of 
certain governments,—the using of the public funds by the 
President for the furtherance of his own private ends. Had 
it not been for this clause there would have been no bar 
save honor to prevent the President from conducting the 
people’s money into channels for the reception of which it 
was little meant, one of which might be the subversion of 
the very liberties of the people themselves. 

A statement and account of the receipts and expenditures 
of the government is now published at least once each year 
in the form of a report of the Secretary of the Treasury. 

CLAUSE 8. 

TITLES OF NOBILITY. 

No title of nobility shall be granted by the United .States; and no person 
holding an office of profit or trust under them, shall, without the consent of 
Congress, accept any present, emolument, office, or title of any kind whatever, 
from any king, prince or foreign state. 

One of the great fundamental principles upon which the 
structural work of this government was- builded is that all 

[1:9:8] 


88 


ClVriv GOVKRNMKNT OR 


men are created equal before the law. While it is impossible 
to make all men equal before the bar of public opinion or 
of that artificial and too often shallow thing- called society, 
yet in theory at least before the eyes of the law there shall be 
special privileges to none, but equality to all. In order to 
prevent the violation of this principle it was necessary to 
prohibit Congress from ever creating a titled aristocracy. 

But this clause goes further than merely prohibiting Con¬ 
gress to grant titles of nobility. It also prohibits all officers 
of the United States, whether they be civil, military or leg¬ 
islative, from accepting presents, offices or titles from for¬ 
eign nations or the rulers thereof, without the consent of 
Congress. The reason for this is that experience has proven 
to the sorrow of not a few nations that such presents, offices 
or titles are not often meant as a reward of merit, but as a 
bribe to the recipient to betray his country and perhaps 
imperil its liberties. If a present or title is not meant as a 
bribe the consent ol Congress to its being received can be 
readily obtained. This clause, however, does not prohibit 
our citizens or the officers of the several states from receiv¬ 
ing presents, etc., from foreign nations or from the rulers 
thereof, although the state constitutions very generally pro¬ 
vide that their officers shall not do so. Thus far several 
American citizens have received honors at the hands of 
foreign states, and these either for services rendered those 
countries or for services rendered the cause of science and 
the arts. Neither does it prohibit the President from accept¬ 
ing, in the name of the United States, presents from a for¬ 
eign prince, as such presents are considered as not meant for 
him, but for the nation, and are consequently its property. 
If propriety and common courtesy demand that a present be 
made such sovereign in return, it is determined upon bv 
Congress and money appropriated for its purchase. 


[1:9:8] 


thk unite:d states. 


SECTION lo. 

PROHIBITIONS ON THE STATES. 

CLAUSE I. 

ABSOLUTE PROHIBITIONS. 

No state shall enter into any treaty, alliance of confederation; grant letters 
of mar(5ue and reprisal; coin money; emit bills of credit; make anything 
but gold and silver coin a tender in the payment of debts; pass any bills ot 
attainder, ex post facto law, or law impairing the obligation of contracts, or 
grant any title oh nobility. 

By virtue of this clause the several states have bound 
themselves absolutely and unconditionally to surrender to 
the national government certain rights which were inherent 
in them, to-wit: 

First, the right to enter into treaties, alliances or confed¬ 
erations with other states or with foreign nations, and this 
for the reason that to allow them to do so would be to invite 
foreign intrigues, and through their agency soon make an 
end to the Union. The result of this wise provision is to' 
prevent foreign nations from fomenting sectional strife be¬ 
tween the states, which is the forerunner of civil war; and 
also to prevent the several states from taking up the quarrels 
of different foreign nations, which if allowed would be the 
heralder of national annihilation. 

Second, the power to issue letters of marque and reprisal 
is denied the states, for the reason that, since the national 
government is responsible for their acts, if the states 
could license.privateers they would be in a position to keep 
the nation ever involved in the throes of a foreign war. 
Hence, the wisdom of this prohibition. 

Third, nor can the states coin money, for the reason that 
to do so is an attribute of sovereignty, and hence should be 


[i: lo: I] 


90 


CIVIL GOVERNMENT OE 


denied to them and given to the national government, as is 
the case under the Constitution. Then, too, if each of the 
states could coin its own money, there certainly would be 
several different sets, under which condition the want of a 
reliable and uniform system of coinage would be deeply felt 
by the business interests of the country. 

Fourth, states cannot issue or ‘^emit’’ bills of credit, i. e., 
paper money, the office of which is to circulate as money, 
and this for the same reason that they are denied the power 
to coin money. But this does not prevent the states from 
borrowing money and issuing bonds in evidence thereof, 
for the reason that bonds are not considered as paper 
money, they not being designed to circulate as such. 

Fifth, neither can the states make anything but gold and 
silver coin legal tender in the payment of debts, and this for 
the reasons just stated, though the national government can 
and has done so. But the states can if they wish make gold 
and silver legal tender to any amount, and that in the face of 
a United States law declaring that either the one or the 
other shall be legal tender for a much smaller or larger sum. 

Sixth, the states are forbidden to pass bills of attainder 
and cx post facto laws for the same reason that the Congress 
of the United States is forbidden to do so. 

Seventh, the states are absolutely forbidden to pass any 
law the purpose of which is to invalidate a contract pre¬ 
viously made, or to in any manner change the terms thereof, 
and this for the reason that were the states in a position to 
pass such laws no man could with safety enter into any 
obligation with his fellows or with any state or municipality, 
thus breaking the spirit of industry and enterprise so promi¬ 
nent in our people. But the United States can and have 
passed laws impairing the obligation of contracts. Even 
at this writing there is one on the statute books in the form 
of a national bankruptcy law, the effect of which is to re- 

[i; lo:i] 


THlC UNITED STATES. 


91 


lease one properly declared a bankrupt from all his existing 
debts, and this whether they were contracted before or after 
the date on which the law went into full force and effect. 
Under the state insolvency or bankruptcy laws, however, 
this is entirely different, for because of this provision an 
insolvent taking advantage of them can be released only 
from all debts contracted by him after the date on which the 
law went into effect. But a state can make all regulations 
it desires in regard to the form, conditions, etc., of future 
contracts, and can also pa’ss laws either lengthening or 
shortening tJie time in which either a past or future contract 
shall become ‘‘outlawed,’’ as such laws do not impair the 
obligation of contracts, but simply declare in effect that 
the state will not compel its courts to enforce contracts be¬ 
tween persons after a certain time has elapsed from the date 
on which they were entered into. And, 

Eighth, this clause unconditionally prohibits the states 
from granting titles of nobility, for the same reason that 
the United States are prohibited from doing so. 


CLAUSE 2. 

CONDITIONAL PROIIimTIONS. 

No state shall, without the consent of Congress, lay any imposts or duties 
on imports or exports, except what may be absolutely necessary for executing 
its inspection laws; and the net produce of all duties and imposts, laid by any 
state on imports or exports, shall be for the use of the treasury of the United 
States; and all such laws shall be subject to the revision of Congress. No 
state shall, without the consent of Congress, lay any duty on tonnage, keep 
troops or ships of war in time of peace, enter into any agreement or compact 
with another state, or with a foreign power, or engage in war unless actually 
invaded, or in such imminent danger as not to admit of delay. 

This clause prohibits the states from doing certain things, 
unless Congress has consented either expressly or impliedly 
to the same, and those things are: 


[i; 10: 2] 


92 


CIVIIv GOVERNMENT OE 


First, the states cannot lay imposts or duties on imports 
or exports without the consent of Congress, except such as 
may be necessary to properly defray the expenses of enfor¬ 
cing their inspection laws. This is in entire harmony with Sec¬ 
tion 8, Clause i, and taken together with it shows plainly that 
the whole aim and intent of the fathers was to give the na¬ 
tional government absolute control over both foreign and 
domestic commerce, in order to avoid the commercial evils 
that existed under the Articles of Confederation. But one 
slight exception to this intent k found in the entire Consti¬ 
tution, and the reason for it is that the United States, having 
a direct interest in the health and happiness of their people, 
could do no less than bow to the dictates of public policy 
and encourage the several states to inaugurate a system of 
inspection laws which would insure to consumers quality 
and quantity in the necessaries of life, by making such sys¬ 
tem self-supporting. But even should Congress for any 
reason authorize the states to levy duties on imports and 
exports, yet they could not retain the money thus collected 
for their own gain, but must pay the same, except so much 
thereof as may be necessary to properly enforce their in¬ 
spection laws, into the treasury of the United States. Thus 
far none of the states have been called upon to pay duty 
money to the national government, and it is not at all prob¬ 
able that they ever will be. 

Second, the states are also conditionally denied the power 
to impose tonnage duties; that is, duties on ships in pro¬ 
portion to the amount of freight they are able to carry. 
This provision is in perfect accord with the determination 
of the fathers to give Congress absolute control over the 
commerce of the nation. 

Third, the states are forbidden to keep armies and navies 
in times of peace, unless Congress consents thereto. It 
would have been simpler to deny to the states absolutely 

[i; lo; 2] 


THE UNITED STATES. 


93 


the power to do this in times of national quiet, but the 
framers of the Constitution feared that an occasion might 
arise when it would be both necessary and proper for a 
state to have an army and navy even in time of peace, so 
they made it optional with Congress. But in times of war 
the states may raise and equip armies and navies both for 
their own defense and for the defense of other states, and 
this without the consent of Congress. This provision, how¬ 
ever, does not affect the right of the states to organize, drill 
and arm their militia in times of peace as well as in times 
of war, and most of them have availed themselves of this 
power. It V only prohibits them from keeping standing 
armies without the consent of Congress. 

Fourth, nor can states enter into any agreements or com¬ 
pacts with each other or with foreign nations, unless such 
is the will of Congress. We have already learned that the 
states are absolutely forbidden to enter into political com¬ 
pacts with each other or with foreign nations (clause i, this 
section); but from this clause we learn that they are only 
conditionally prohibited from entering into business or com¬ 
mercial compacts. This was so provided because it was 
feared that if the states were allowed to enter into business 
relations without the supervision of Congress, these might 
in time ripen into political relations, and thus become sub¬ 
versive of our liberties and our institutions. Congress, in 
the exercise of this power, has from time to time either 
expressly or impliedly permitted the states to enter into 
business compacts with each other, such as the settlement 
of disputes over their respective boundaries, and the like, 
but never with foreign nations. And, 

Fifth, neither can a state engage in war with other states 
or with foreign nations, unless in self-defense, except it be 
authorized to do so by Congress. This is because if a state 
had the power to make offensive war whenever it was so 

[i: lo:2] 


94 


civil, gove:rnment oi^ 


minded, the cloud of battle would perhaps be constantly 
hovering over the nation, for no state can go to war, either 
offensive or defensive, without involving the rest in it also. 
If a state is invaded, the United States is also invaded, and 
as the insult is to the nation, it must be avenged by the 
nation. So, too, if a state goes to war the United States 
must also, or effectually stop it at once, as the national 
government is held responsible for the acts of the states. 


ARTICLE II. 

THE EXECUTIVE DEPARTMENT. 

In the foregoing article we learned what constitutes and 
the powers of the Legislative Department of the govern¬ 
ment ; in this article we are to learn what constitutes and- 
the powers of the Executive Department. And as it is the 
duty of the Legislative Department to make the laws, so is 
it the duty of the Executive Department to carry them out 
and enforce them. Were there no Legislative Department, 
there would be no need of an Executive Department, as there 
would be no laws to enforce. Hence, it seems to us, that 
after the laws have been made by the Legislative Depart¬ 
ment as provided in Article I., it follows naturally that there 
should be some person provided for to carry those laws 
into effect. We say “person” for the reason that in order 
that the laws may be properly and effectually executed the 
decision and energy of a single will is an absolute necessity, 
and the only means to secure this is to repose the power 
and responsibility of enforcing them in the hands of a single 
man. Experience has shown that where a nation is gov¬ 
erned by more than one person, the result is indecision, 
inaction, jealousy, lack of secrecy and very often intrigues 



Tlll^ UNITED STATES. 


95 


on the part of one or more of them to gain to themselves 
absolute power. A fitting lesson in this respect can be 
gleaned by studying the history of Rome under the trium¬ 
virate, and it is a lesson that was well learned and with 
much profit by the after ages, though the awful price paid 
by the teacher is beyond the comprehension of man. But 
the fathers did not need to turn their eyes backward to that 
dim age in order that the evil of reposing the executive 
power in more than one man might be taught them. The 
attempt made under the Articles of Confederation to place 
the executive functions in the, hands of the Continental 
Congress whren it was in session, and in the hands of a 
delegate from each state when it was not, resulting as it 
did in the utter failure to properly enforce the laws or to 
prescribe a decisive rule of action, was entirely sufficient 
CO teach them that the best and surest means to attain the 
desired end would be to repose the power of enforcing the 
laws in the hands of one man, whom in their simplicity 
they termed the “President.” 

Having decided that it was necessary to have a separate 
and distinct Executive Department in the government they 
were about to launch on the sea of fate, the framers of this 
Constitution next set about to determine how it should be 
organized so that it would have the necessary energy and 
decision, and yet not be a menace to the liberties of the 
people, for in their ears kept constantly ringing the terrible 
warning of the ages that an unlimited executive is a des¬ 
potism, and of all branches of a government the greatest 
foe to human liberty. They perceived that if the President 
as the head of the Executive Department could not be com¬ 
pelled to account for his actions, he would be tempted from 
time to time to usurp the functions of the other depart¬ 
ments .until finally he became the absolute ruler of an 
empire, instead of the president of a republic. This they 
accomplished. 


96 


CIVIL GOVERNMENT OE 


First, by specifically defining bis duties and threatening 
him with impeachment and removal from office if he at¬ 
tempts to go beyond the limit, or in any other manner 
grossly betrays the confidence of the people; 

Second, by limiting his term of office to four years, which 
is too short a time for an ambitious or foolish President to 
accomplish much mischief; 

Third, by requiring that he shall be chosen by the people 
through their accredited electors, thus making him indi¬ 
rectly responsible to them for his acts; and 

Fourth, if he is serving his first term, by holding out to 
him the hope of re-election should he be able to convince 
the people that he has served them well. 

What success the fathers have attained in this respect, 
let the loving hearts of a grateful people proclaim. 

SECTION I. 

HOW ORGANIZED. 

CLAUSE I. 

VESTMENT OF EXECUTIVE POWER. 

The executive power shall be vested in a President of the United States 
of America. He shall hold his office during the term of four years, and to¬ 
gether with the Vice President, chosen for the same term shall be elected as 
follows. 

From this clause we learn that the term for which a Pres¬ 
ident shall hold office is four years, or two more than a 
Representative and two less than a Senator. He is elected 
on the first Tuesday after the first Monday of November 
in each year the number of which is divisible by four, and, 
except in case of a vacancy, takes his seat on the fourth day 
of March, at noon, in the next succeeding year, which is the 

[2:1: i] 


THE UNITED STATES. 


97 


same time that the newly elected Congressmen take their 
seats. The Vice President is elected at the same time 
as is the President, takes his se^P^f tlfe same time and 
holds office for the same length of time. The determina¬ 
tion of the Constitutional Convention to make the terms of 
these officials four years in length was the result of a com¬ 
promise, part of the delegates wishing to make them for 
one year only and part for life or during good behavior, 
while the remainder wished to make them seven years and 
])rohibit re-election. But the Constitution is silent in re¬ 
gard to how many terms a President may hold. It has 
become a w^ell-established custom, however, that a Pres¬ 
ident can hold but two terms and no more. This custom 
was originated when the ^‘Father of his Country’’ declined 
the proffered offer of a third term presidency, saying that 
to be President two terms was .enough. The brilliant Jef¬ 
ferson confirmed it by declining to fill the President’s chair 
a third time for the same reason, and it has been confirmed 
by the constant practice of the country ever since, until it 
can now be considered as a part of the lex non scripta (un¬ 
written law) of the land. 

We have hereinbefore noted the reason or reasons for 
which a Vice President is chosen, and hence will not take 
the space to again repeat them (see page 31). We will 
simply content ourselves by saying that in four instances 
only has a Vice President become President, and then for 
no other reason than the death of the President. 

CLAUSE 2. 

PRESIDENTIAL ELECTORS. 

Each state shall appoint, in the manner which the legislature thereof may 
direct, a number of electors equal to the whole number of Senators and Rep¬ 
resentatives to which the state may be entitled in the Congress; but no Sen¬ 
ator or Representative, or person holding an office of trust or profit under the 
United States, shall be appointed an elector. 


98 


CIVIIv GOVERNME^NT OE 


In the Constitutional Convention three plans for the elec¬ 
tion of President and Vice President were proposed. The 
first of these was that they should be chosen by Congress; 
the second, by the people directly; and the third, by pres¬ 
idential electors. After much deliberation and debate it 
was decided that they should not be chosen by Congress 
for the reason that to allow such to be done would to a 
more or less degree make the Executive Department sub¬ 
ordinate to and dependent on that of the Legislative, which 
is contrary to our plan of government; neither could they 
see their way clear to adopt the second plan for the reason 
that they feared the inexperience and partisan prejudices 
of the people would mislead them and render their choice 
an unwise one, and for the further reason that the smaller 
states feared that their voices would be but indistinctly 
heard should the President and Vice President be elected 
by direct vote. Hence, it was determined as a matter of 
compromise to adopt the third plan; that is, the election 
of President and Vice President by means of presidential 
electors chosen by the several states in such manner as the 
legislatures thereof may direct, each state to have as many 
electors as it has Senators and Representatives in Congress. 
This mode of election gave to the smaller states as great 
a concession as they could reasonably ask, and in addition 
it was thought that its natural result would be the selection 
of the wisest and best men in each state as electors, to 
whose wisdom, foresight and patriotism the fathers felt that 
they could safely leave the responsibility of choosing a 
President and Vice President of the United States. In 
theory this was an ideal plan, indeed, but in practice it did 
not work as well as the delegates fondly expected it would. 
In actual practice the President and Vice President are 
chosen by the people indirectly, the electors being pledged 
beforehand to cast their votes for the candidates of the 


[2:1:2] 


THK UNITI:d statics. 


99 


party electing them. This of course was a natural result 
of the division of the people into several political parties, 
the aim of each of which is to obtain control of the govern ¬ 
ment, but was little dreamed of by the fathers. The pres¬ 
idential electors have never yet failed to vote for the can¬ 
didates of the party that elected them, except those pledged 
to vote for Horace Greeley for President, and this was 
because he died shortly prior to the date on which they 
met to cast their votes. 

It having been determined that these high officers should 
be elected by electors, the next question that naturally pre¬ 
sented itself was: What shall be the qualifications of these 
electors? and in what manner shall they be chosen? In 
determining the qualifications of an elector it was thought 
sufficient to prescribe only that he must not be a Senator 
or Representative or a civil officer of the United States. 
This was done for the purpose of depriving him to as great 
an extent as possible of any personal interest in the result 
of the election. But as electors are now practically noth¬ 
ing more than mere machines whose business it is to cast 
their votes for the candidates of the party electing them, 
this provision is of no apparent value and has been evaded 
in numerous and various ways. But when it came to 
determining in what manner the electors should be chosen, 
however, there was much difference of opinion, and so it 
was decided to allow each state to choose its electors in 
the way best suited to its fancy. Very naturally this re¬ 
sulted at first in their being chosen by divers methods. 
Some states appointed them through their legislatures; 
some elected them by districts, which seems to us much the 
fairest way; and still others by a vote of the people of 
the entire state. This latter method is the one now gen¬ 
erally used throughout the*nation. 

L.ofC. 


[2:1:2] 


100 


CIVIIv GOV:eRNMIvNT OR 


CLAUSE 3- 

ELECTION OF PRESIDENT AND VICE PRESIDENT.—(TWELFTH 

AMENDMENT.) 

The electors shall meet in their respective states and vote by ballot for 
President and Vice President, one of whom, at least, shall not be an inhabitant 
of the same state with themselves; they shall name in their ballots the person 
voted for as President, and in distinct ballots the person voted for as Vice 
President, and they shall make distinct lists of all persons voted for as Presi¬ 
dent, and of all persons voted for as Vice President, and of the number ot 
votes for each; which lists they shall sign and certify, and transmit sealed 
to the seat of government of the United States, directed to the President of 
the Senate. The President of the Senate shall in the presence of the House 
of Representatives, open all the certificates, and the votes shall then be 
counted; the person having the greatest number of votes for President shall 
be President, if such number be a majority of the whole number of electors 
appointed; and if no person have such majority, then from the persons having 
the highest number not exceeding three on the list of those voted for as 
President, the House of Representatives shall choose immediately, by ballot, 
the President. But in choosing the President, the votes shall be taken by 
states, the representation from each state having one vote; a quorum for this 
purpose shall consist of a member or members from two-thirds of the states, 
and a majority of all the states shall be necessary to a choice. And if the 
House of Representatives shall not choose a President whenever the right ot 
choice shall fall upon them, before the fourth day of March, next following, 
then the Vice President shall act as President, as in the case of the death or 
other constitutional disability of the President. 

The person having the greatest number of votes as Vice I’resident shall 
be the Vice President, if such number be a majority of the whole number of 
electors appointed, and if no person have a majority, then from the two high¬ 
est numbers on the list, the Senate shall choose the Vice President; a quorum 
for the purpose shall consist of two-thirds of the whole number of Senators, 
and a majority of the whole number shall be necessary to a choice. But no 
person constitutionally ineligible to the office of President shall be eligible to 
the office of Vice President of the United States. 

It will be noticed that the original clause 3 is omitted 
and the same as amended by the XII Amendment to this 
Constitution is inserted in its stead. This is because said 
amendment entirely su])ersedes the original clause, and 
therefore renders it of historic value only. 

The student will readily perceive from this clause as 
amended that the President and \dce President may be 

[2: i: 3] 


THE UNITED states. 


lOI 


chosen by a resort to either one of two modes or processes 
—by receiving a majority of the votes cast by the whole 
number of electors appointed, or, in case there is a failure in 
this, the President may be chosen by receiving a majority 
of the state votes cast by the House of Representatives, 
and the Vice President may be chosen by receiving a ma¬ 
jority vote of the whole number of Senators elected. 

First Process. —^The first mode or process of electing 
the President and Vice President is accomplished under the 
following restrictions: 

First, the electors, after they have been chosen, meet in 
their respective states, at the seat of government thereof. 
The reason for this was to render it more difficult, if not 
entirely prevent, the bargaining for votes, which could be 
much easier accomplished if the electors all met at the same 
place. When, by reason of death or ineligibility, a va¬ 
cancy occurs in the college of electors in any state, it is 
usually filled by appointment by the electors of that state 
themselves. 

Second, after the electors have met for the purpose of 
choosing a President and Vice President, which Congress 
has provided shall be on the second Monday of January 
next succeeding the date of their election, they must pro¬ 
ceed to do so by voting by ballot, for the reason that by 
this method it was hoped to preserve due secrecy and thus 
render the electors more independent. Since they have 
come to fill the capacity of mere voting machines, however, 
this provision, except so far as convenience is concerned, 
is of no practical value. But in no case can more than one 
of the candidates voted on for these high offices be a resi¬ 
dent of the same state with themselves, as it was believed 
that should a different rule be permitted too much power 
might be given to one state. 


[2:1:3] 


102 CIVIIv GOVERNMENT OE 

Third, the electors, after they have thus met, must ballot 
for President or Vice President separately, as this tends 
to prevent mistakes or confusion in voting-. 

Fourth, a list must then be made by the electors of all 
persons voted for by them for President, and a like list of 
all persons voted for by them for Vice President, which 
lists must be signed and certified by all the electors in each 
state as genuine. Three sets of these lists are made out, 
all of them being exactly alike, one of which is sent to the 
President of the Senate by mail, another by special mes¬ 
senger, and the third is delivered to the United States 
district judge presiding over the district in which the elec¬ 
tors meet. Should it chance to happen that the president 
of the Senate, on or before the fourth Monday of January, 
fails to receive either the one or the other of the two lists 
sent him from any state, then a special messenger must 
be dispatched by the Secretary of State to the district judge 
of the district in which the seat of government of such state 
may be located for the-one in his possession. And, 

Fifth, on the second Wednesday of February following 
the date on which the electors were chosen the President 
of the Senate, in the presence of both the Senate and House 
of Representatives sitting in joint session for that purpose, 
must cause these lists to be opened and read and the result 
announced. If from this result it appears that any Presi¬ 
dential candidate has received a majority of the entire 
number of electoral votes cast, he is thereupon declared 
elected. And if any candidate for Vice President has re¬ 
ceived a majority of all the electoral votes cast for that 
office, he is also thereupon declared elected. But if in 
either case no candidate has received a majority of the votes 
cast by all the electors, there can be no choice of President 
and Vice President, or either, by the electors, for they must 
choose on the first ballot or not at all. 


[2:1:3] 


the: united states. 


03 


Second Process. —This mode or process is resorted to 
only after there has been a failure by the electors to choose 
either a President or Vice President, or both. If they fail 
to elect a President the right to do so devolves upom the 
House of Representatives, under the following restrictions: 

First, the House of Representatives can vote for only 
such candidates for President as have received the three 
highest numbers of electoral votes. This is for the purpose 
of facilitating the election of a President. 

Second, the vote must be by ballot, and this for the same 
reason that ^electors are required to vote by ballot. 

Third, the balloting must be by states, each state having 
one vote, the same being cast for the candidate to whom 
a majority of the Representatives of such state present may 
direct. But if it should chance that the members of a 
certain state present and voting are equally divided, the 
vote thereof is not given to any candidate. 

Fourth, before the House of Representatives can vote for 
a President, there must be a quorum present consisting of 
a member or members from at least two-thirds of the states. 
This is different than for ordinary purposes, when a ma¬ 
jority of the entire number of Representatives elected are 
sufficient to constitute a quorum, and was probably sug¬ 
gested by the greater solemnity of the occasion. 

Fifth, the votes of a majority of the states are necessary 
to a choice. This is in conformity with one of the funda¬ 
mental principles of a representative government, that a 
majority rules. And, 

Sixth, immediately after it is known that the electors 
failed to choose a President, the House of Representatives 
must i^roceed to do so; but if it also fails to elect one 
before the 4th of March, then the Vice President last elected 
becomes President. This is so provided for the reason that 
the old House of Representatives ceases to exist on that 


[2:1:3] 


04 


CIVIL, GOVERNMENT OE 


day, a new one coming into power; and for the further 
reason that the President’s term of office must commence 
on that day, at noon. 

But if the college of electors fails to elect a Vice Presi¬ 
dent, the right to do so does not devolve upon the House 
of Representatives, as is the case when they fail to elect 
a President, but upon the Senate, under the following re¬ 
strictions : 

First, the Senate can vote for only such candidates for 
Vice President as have received the two highest numbers 
of electoral votes. And, 

Second, before the Senate can proceed to choose a Vice 
President there must be a quorum present consisting of hot 
less than two-thirds of the entire number of Senators elected, 
but he may be chosen by a majority vote only,—not a ma¬ 
jority of the votes of those actually present and voting, but 
a majority of all. 

The XII. Amendment was adopted in 1804, and although 
it is incomparably more perfect than was the original Clause 
3, yet is it in spite of that fact still very defective, in that it 
fails to make any provision as to the manner a disputed 
election of Presidential electors in any state shall be settled. 
The impotency of the Constitution in this respect was 
brought very forcibly and in an extraordinary manner to the 
attention of the people in 1876-77, and all but resulted in 
bringing on one of the bitterest political wars known to 
history. Hence, it seems but the part of reason that the 
Constitution should be amended in this respect, and it is to 
be hoped that such will soon be the case. 

CLAUSE 4. 

ELECTIONS, TIME OF. 

The Congress may determine the time of choosing the electors, and the 
day on which they shall give their votes; which day shall be the same 
throughout the United States. 


[2:1:4] 


The united states. 


105 


Congress has long since availed itself of the power given 
it by this clause to determine the dates on which these elec¬ 
tions shall take place, by providing that electors shall be 
chosen on the first Tuesday after the first Monday of No¬ 
vember in every year the number of which is divisible by 
four, that being also the time when the representatives of 
every odd-numbered Congress are elected; and by provid¬ 
ing further that on the second Monday of the January next 
succeeding the date of their election, the electors shall meet 
and cast their votes for President and Vice President. 

The provision that these dates shall be uniform through¬ 
out the United States was inserted for the purpose of pre¬ 
venting fraud, and also for the purpose of convenience. 

CLAUSE 5- 

QUALIFICATIONS OF PRESIDENT AND VICE PRESIDENT. 

No person except a natural-born citizen, or a citizen of the United States 
at the time of the adoption of this Constitution, shall be eligible to the office 
of President; neither shall any person be eligible to that office, who shall not 
have attained the age of thirty-five years, and been fourteen years a resident 
within the United States. 

Under the provisions of this clause no person can become 
President of the United States unless he is a natural-born 
citizen thereof—one who is a citizen by right of inheritance, 
and not by adoption or naturalization. But it is not neces¬ 
sary that one, to be a natural-born citizen of the United 
States, must be born on American soil, as the children of 
American parents born in foreign lands are natural-born 
citizens of this Republic and may be elevated to the presi¬ 
dency. This requirement was inserted because of the im¬ 
portance of the office to be filled, and because of the bitter 
lessons of misrule that followed the mounting of the Princes 
of Hanover upon the triple throne. To us it seems a wise 

[2:1:5] 


I06 CIVIIv GOVERNMENT OE 

and just provision—one the natural result of which is the 
placing by the people of more confidence in their chief ex¬ 
ecutive. 

But in order to show a sense of gratitude to those lion- 
hearted patriots, not natural-born citizens, who so unsel¬ 
fishly placed their lives and fortunes upon the altars of their 
adopted country during the stormy days of the Revolution, 
it was provided that all citizens of the United States at the 
date of the adoption of this Constitution, whether natural- 
born or not, should be eligible to the office of President. 
But as none of those revered persons now tread the hills 
and vales of earth in mortal garb, this provision is of course 
obsolete. 

Neither is any person eligible to the Presidency unless he 
is thirty-five years of age or over, and this in order to allow 
the passions of youth to become moderated and the judg¬ 
ment to become more matured. Nor can even a natural- 
born citizen of the required age become President unless 
he has resided within the United States continually for a 
period of fourteen years. This is so provided in order to 
make all candidates for the Presidency familiar with the 
institutions of the land he aspires to govern, but whether 
this residence may be at any time between the date of his 
birth and that of his election, or must be immediately pre¬ 
ceding such time, is a question left undecided by the Con¬ 
stitution. Many of the greatest lawyers and commentators 
hold to the former view, but we believe the same to be in¬ 
compatible with the intention and spirit of the Constitution. 
Should their view be upheld, then the object of this pro¬ 
vision might be wholly defeated, for in such event a natural- 
born citizen might spend the first fourteen, years of his life 
here and the remainder up to the time of his election in some 
foreign land, thus rendering him entirely tmfamiliar with 
our institutions, and probably somewhat estranged from 
[2:1:5] 


THK UNITED STATe:S. 


107 


them. Hence, it is oiir firm belief, backed by what seems 
to ns the only interpretation that this provision of the Con¬ 
stitution is susceptible of, that no person can become Presi¬ 
dent of the United States unless he has resided therein at 
least fourteen years next preceding the date of his election. 
But it must be remembered in this connection that a person 
may still be considered as residing within the United States 
even if he is in foreign lands, providing he is serving them 
in some official capacity, or as a soldier or sailor. 

According to the provisions of the XII. Amendment the 
Vice President must have the same qualifications as the 
President. Hence, it follows that no person is eligible to 
the Vice Presidency unless he is at least thirty-five years of 
age, a natural-born citizen of the United States, and has 
resided at least fourteen years in the United States next 
preceding the date of his election, and this for the reason 
that he may become President. 

CLAUSE 6. 

VACANCIES. 

In case of the removal of the President from office, or of his death, resig¬ 
nation or inability to discharge the powers and duties of the said office, the 
same shall devolve on the Vice President, and the Congress may by law pro¬ 
vide for the case of removal, death, resignation or inability, both of the Presi¬ 
dent and Vice President, declaring what officer shall then act as President, 
and such officer shall act accordingly, until the disability be removed, or a 
President shall be elected. 

The office of President may become vacant because of 
any one of five reasons, to-wit: By impeachment and re¬ 
moval of the President; by his death; by his resignation; 
by the failure of both the college of electors and the House 
of Representatives to choose a President prior to the 4th 
day of March next succeeding the date on which the electors 
are chosen; or by such disabilities as insanity or severe and 

[2:1:6] 


io8 


CIVIL GOVERNMENT OE 


long continued sickness. When a vacancy occurs because 
of this latter reason, however, it continues only until the dis¬ 
ability is removed. When such is the case, the President 
again assumes the powers and duties of his office. But the 
mere absence of the President from the seat of government 
does not create a vacancy, unless, perhaps, he should jour¬ 
ney beyond the jurisdiction of the United States, but in such 
case he would vacate his office only during the time of his 
absence. Nor is his office vacaiit during the time an im¬ 
peachment case is pending against him. It can only become 
such on this ground after the Senate has passed its judg¬ 
ment of removal. 

Since, as we have seen, the office of President may be¬ 
come vacant because of any of the foregoing reasons, the 
wisdom of providing through the Constitution a mode or 
rule for filling the same became very apparent to the fathers, 
in order to forestall or prevent the possible contingency of 
anarchy and confusion resulting from the occurrence of a 
vacancy in this high and important office. Hence, it was 
prescribed that should such a vacancy occur, it may be 
filled in one of two ways: First, if there is a Vice President, 
by his succeeding to the President’s chair; and second, if 
there is no Vice President, or he is also incapacitated, then 
the Congress may provide by law what officer of the United 
States shall act as President. Under this authorization 
Congress has placed the succession in the cabinet in the 
following order: Secretary of State, Secretary of the Treas¬ 
ury, Secretary of War, Attorney-General, Postmaster-Gen¬ 
eral, Secretary of the Navy, and Secretary of the Interior. 

When the Vice President, through a vacancy, becomes 
President, he serves for the unexpired term of his chief, 
unless it be because of some temporary disability on the 
part of the President, in which case he acts as President 
only until such disability is removed. But if the Secretary 

[2:1:6] 


The: unite:d states. 


109 


of State or some other cabinet officer, because of the death, 
removal, resignation or incapacity of both the President 
and \ ice President, is called to fill the vacancy, he is simply 
acting as President, and can hold the office only until the 
next autumn following the occurrence of such vacancy, at 
which time a special election must be held for the purpose 
of choosing a President to fill the unexpired term, unless 
the vacancy occurs during the last year of the President’s 
term, in which case he retains the office of Acting President 
until the new President is inaugurated. 


CLAUSE 7. 

SALARY OF PRESIDENT. 

The President shall, at stated times, receive for his services a compensation 
which shall neither be increased nor diminished during the period for which 
he shall have been elected, and he shall not receive within that period any 
other emolument from the United States, or any of them. 

The reason for the provision that the President shall re¬ 
ceive compensation for his services was to enable persons 
of moderate means, if otherwise qualified, to aspire 
and be elected to the office of President. But the amount 
of this compensation is left entirely to the judgment of Con¬ 
gress, with the restriction that it can neither be increased nor 
diminished during the President’s term of office. Congress 
at first placed this compensation at $25,000 per year, but 
in 1873 raised it to $50,000 per annum, which is the salary 
now allowed. Besides this. Congress also appropriates to 
the President’s use from time to time the amount of all 
special expenses he is called upon to meet, and has furnished 
him with a dwelling in which to live—the executive man¬ 
sion, or White House. The chief executive of no nation re¬ 
ceives so small a compensation as does that of our own, 
considering its resources, wealth and size. 


[2:1:7] 


no CIVIIv GOVERNMENT OE 

The Vice President, when acting as such, receives a salary 
of $8,000 per annum. When acting as President, he receives 
the same compensation as does the President. 

The provision that the President’s salary must be neither 
increased nor decreased during his term of office, and that he 
shall accept no other emolument from the United States, or 
any of them, was inserted for the purpose of making him 
entirely independent of the blandishments of Congress and 
of the state legislatures on the one hand, and on the other 
to remove from him all temptation to either try to bribe the 
Congress for his own pecuniary welfare or to submit to the 
sinister designs of the states. 

CLAUSE 8. 

OATH OF OFFICE. 

liefore he enters on the execution of his office, he shall take the following 
oat}?, or affirmation: “I do solemnly swear (or affirm) that 1 will faithfully 
execute the office of President of the United States, and will, to the best of 
my ability, preserve, protect and defend the Constitution of the United States.” 

The President, before he can enter upon the performance 
of the duties of his office, must take an oath or affirmation 
pledging himself to do two things: First, to faithfully per¬ 
form the duties incumbent upon the office of President of 
the United States; and, second, to the best of his ability to 
preserve, protect and defend this Constitution. The pur¬ 
pose of this is to indeli1)ly impress upon his mind the duties 
and responsibilities of his high office, and to constantly re¬ 
mind him that he is but the servant of the people. 

The oath of office may be administered to the President 
by any judge or other person authorized to administer oaths, 
but it has become the custom to have'the Chief Justice of 
the United States Supreme Court, who is in rank next to 
the President, perform this duty. 


[2:1:8] 


TIIK unitkd states. 


111 

SECTION 2. 

POWERS AND DUTIES OF THE PRESIDENT. 

CLAUSE I. 

SOME SOLE POWERS OF THE PRESIDENT. 

The President shall be commander-in-chief of the army and navy of the 
United States, and of the militia of the several states, when called into the 
actual service of the United States; he may require the opinion, in writing, 
of the principal officer in each of the executive departments, upon the subject 
relating to the duties of their respective offices, and he shall have power to 
grant reprieves and pardons for offenses against the United States, except in 
cases of impeachment. 

Under this clause the President is made the re¬ 
pository of three sole powers, to-wit: First, the 

power to command absolutely the army and navy of the 
United States; second, the power to require his cabinet 
officers to make reports to him, in writing, on any subject 
relating to the duties of their respective offices; and third, 
the power to grant pardons and reprieves for offenses 
against the United States, except in cases of impeachment. 

I. Commander-ix-Chiee oe Army and Navy.— The 
reason for conferring upon the President this absolute 
power is because elsewhere in the Constitution it is made 
his duty to execute the laws, and to do so sometimes re¬ 
quires force, and at nearly all times a show of 

force. Then, again, it is also his duty to protect the 

nation from invasion and insurrection, and in order to do so 
effectually and at a momeiiFs warning, the necessity of re¬ 
posing in him the absolute power to direct the army and 
navy at all times becomes plainly apparent. But even 
though it is natural and necessary for the President, as the 
chief executive of the nation, to have sole command of the 
army and navy, yet this power thus reposed is fraught with 


[2: 2: i] 


I 12 


civiiv gove:rnmKnt or 


much danger to the liberties of the people, and unless prop¬ 
erly hemmed in by laws “as binding as the admiralty laws 
of Oleron, which changeth not,’’ it might become in the 
hands of an ambitious and unscrupulous man the willing 
servant of tyranny and injustice and the most deadly foe to 
free institutions. Hence, in order that this two-edged power 
might be robbed of its possible sting, the framers of the 
Constitution took good care to repose in Congress, as we 
have heretofore seen, the sole power both to prescribe gen¬ 
eral rules for the government of the army and navy and to 
appropriate money for their support, as well as to regulate 
the size of either or to abolish them altogether. Under 
these restrictions it is hardly possible for the President to 
misuse this power. 

In ordinary times the President’s power to command 
extends only to the regular army and navy of the United 
States, but in times of war it extends also to the volun¬ 
teer iarmy and to the militia of the several states, when in 
the actual service of the national government. At all other 
times the militia is under the command of the governor of 
the state to which it belongs. 

And although the President is commander-in-chief of the 
army and navy, yet it does not necessarily follow that he 
must take the command of them in person. Thus far no 
President has ever done so, but has left their command 
to certain officers appointed by him for that purpose, whose 
duty it is to carry out as best they can his general orders 
or instructions. 

II. Reports or Cabinet Orricers. —The fathers, rec¬ 
ognizing the fact that it would be utterly impossible for 
the President to personally oversee the execution of all the 
laws, therefore through the provisions of this clause im¬ 
pliedly authorized Congress from time to time as necessitv 
might require to establish new executive departments to 


[2:2; i] 


THE UNITED states. 


13 


aid him in this respect. But as he is personally respon¬ 
sible for the due execution of all the laws, tiie further pro¬ 
vision that the heads of these departments, after his having- 
made a demand therefor, must submit to him written 
reports concerning the condition of affairs under their 
direction and control, was inserted, thus making them in 
turn responsible to him. These heads of departments col¬ 
lectively constitute what is known as the President’s Cabi¬ 
net, or Advisory Council, and all but two of them have the 
title of Secretary. They are appointed by the President, 
with the consent of the Senate, and can be removed at any 
time by the same power that appointed them. 

Thus far Congress has provided for eight executive de¬ 
partments, the names of which and the titles of the heads 
of which are as follow^: 

Name of Department. Title of Head. 

Department of State *..:.Secretary of State. 

Treasury Department.Secretary of the Treasury. 

War Department.Secretary of War. 

Department of the Navy.Secretary of the Navy. 

Department of the Interior.Secretary of the Interior. 

Postoffice Department.Postmaster General. 

Department of Justice.Attorney General. 

Department of Agriculture.Secretary of Agriculture. 

•Cv.-. , - 

These departments are all in their turn divided into a 
certain number of bureaus, at the head of each of which 
there is a chief, under whom is a force of clerks, book¬ 
keepers, stenographers, etc. These chiefs are in their turn 
responsible to the heads of their respective departments. 
The duties and organization of each of them is as follows: 

Department op State. —This department is divided 
into three bureaus: The Domestic Bureau ; the Diplomatic 
Bureau; and the Consular Bureau. The office of the first 
of these is to keep the originals of this Constitution and 
of all laws and public documents, such as treaties, Presi- 


8 


[2:2:1] 










. CIVIL GOVLRNMLNT OL 


II4 

dents’ proclamations, correspondence with foreign nations,- 
etc.; to issue warrants to foreign powers for the extradition 
of criminals; to issue passports to American citizens who 
wish to travel abroad; and to keep the great seal of the 
United States. That of the second is to have charge of 
all political relations with foreign nations and conduct all 
correspondence relating thereto. This is done mainly 
through our Ministers residing at the courts of such na¬ 
tions. Those sent to powers of the first class are called 
Ministers Plenipotentiary, while those sent to powers of the 
second and third classes are called Ministers Resident. The 
duties of both are the same, however. They are appointed 
by the President with the concurrence of the Senate. And 
that of the third is to have charge over our commercial 
relations with foreign nations. This is done through Con¬ 
suls, the duties of whom are to g'uard and further our com¬ 
mercial interests abroad and to protect the rights of our 
seanien. And as American citizens, while in non-Christian 
countries such as Turkey, Persia and China, are subject 
only to United States law, it is also the duty of our Consuls 
residing in those lands to adminster American law. 

Treasury Department. —This department, as its name 
signifies, has general charge over everything that pertains 
to the monetary receipts and expenditures of our govern¬ 
ment. Under its direction, too, is money coined and paper 
currency issued and redeemed, as well’as the carrying out 
of all provisions the aim of which is to make navigation 
safe, such as the building of breakwaters and lighthouses, 
the dredging of harbors, etc. There are two Assistant Sec¬ 
retaries of the Treasury, appointed in the same manner as 
is the Secretary, and many thousands of clerks, revenue 
inspectors, detectives, etc., scattered all over the country. 

War Department. —This department has charge of 
everything that relates to the executive control of the 


[2:2: i] 


THE UNITED STATES. I I 5 

army. The chiefs in charge of all its bureaus are army 
officers, though it is not necessary that the* Secretary him¬ 
self should be one. As might be expected, under the 
supervision of this department is the United States Military 
Academy at West Point. 

Navy Department. —This department has charge of 
everything that pertains to the executive control of the 
navy. Among other things, it has supervision of the con¬ 
struction of ships of war and of the construction of ord¬ 
nance, as well as of the United States Naval Academy at 
Annapolis. 

Interior Department. —Of all the departments this 
one has the greatest diversity of duties, it having charge 
of all matters domestic relating to the Executive Department 
of the government. Patents, pensions, etc., are granted or 
denied under its direction. It has charge of and conducts 
the sales of all government lands; of all dealings with the 
Indians; of the taking of the census, and of education. 
The chiefs of its bureaus are called Commissioners, except 
of the Census Bureau, who is called a Superintendent. 

PosToEEicE Department. —Under this department is 
conducted all business relating to the executive control of 
postoffices and post roads throughout the United States. 
It is the department with which the people generally are 
most familiar, the beneficence of which is a qijestion beyond 
controversy. 

Department oe Justice. —This department has charge 
of and conducts all suits for or against the United States. 
Its head is also the legal adviser of the several departments 
of the government. All District Attorneys and Marshals of 
the United States are under the direction of this depart¬ 
ment. 

Agricueturae Department. —This department was es¬ 
tablished in 1889, and its duties are such as its title would 
suggest—the furtherance of our agricultural interests. 

[2:2: i] 


CIVIIv COVKRNMI^NT OR 


1 l6 

As has been hereinbefore stated, the heads of all of these 
departments collectively constitute what is called the Pres¬ 
ident’s Cabinet or Advisory Council. The Cabinet is not a 
legally created institution, but is the outcome of a practice 
commenced by Washington, confirmed by Jefferson and 
continued by their successors ever since. It is simply a 
sort of impromptu advisory board summoned by the Pres¬ 
ident to meet at stated or regular times for the purpose of 
enabling him to consult with its members concerning im¬ 
portant matters of state. But he is not bound by their 
counsels, and may follow them or not as he thinks best. 

But as a general rule the Presidents have moulded their 
acts according to the opinions of a majority of the mem¬ 
bers of their respective Cabinets. The proceedings had at 
each Cabinet meeting are usually kept secrect. 

III. Pardoning PowRr. —This clause also gives the 
President the power to pardon, reprieve or commute all 
offerffees committed against the United States, and this 
whether they are military or naval offenses or the criminal 
offenses of civilians. But the offenses must be against the 
United States and not against any state. Offenses against 
the states are punished only by the states. By virtue of 
this clause the President is empowered to grant either con¬ 
ditional or absolute pardons, or one to take effect at some 
future time; to commute a sentence to one less severe; 
to suspend for a time the punishment of one condemned 
to die, which is called reprieving; to remit fines, penalties 
and forfeitures imposed for a violation of the revenue laws, 
etc.; and to stop at any time criminal proceedings carried 
on in the name of the United States, by directing the Attor¬ 
ney General or one of his subordinates to enter a nolle pro¬ 
sequi (I do not care to prosecute further). 

The reason for permitting the exercise of this power is ^ 
two-fold: First, it has been the experience of all civilized 


[2:2: i] 


the united states. 


II7 

nations in administering justice that at times persons en¬ 
tirely innocent are convicted of crime by mistake, or be¬ 
cause of suborned witnesses, or because of unreasoning 
public opinion or prejudice, and that persons guilty are 
sentenced to a punishment greater than they merit; in 
which cases the pardoning power is a very beneficent one, 
indeed, and is decked with the spirit and paraphernalia of 
justice. And second, it sometimes happens that it is im¬ 
possible to prove a number of persons guilty of a crime, 
except upon the testimony of one of their own number, 
which testimony will be given only after the witness has 
been assured that he will not be punished for his share in 
the commission of the offense; in which event the reason 
for this power is very plain. 

But there is one limit to the President’s power in this 
respect, in the matter of all cases of impeachment. This 
was inserted because an impeachment is a political offense, 
and not a criminal one, and as the President has at least 
some voice in the appointment of all officers liable to im- 
])eachment, this limitation was placed upon his pardoning 
])Ower in order to prevent him from shielding his ministers. 
Then, too, the President is himself liable to impeachment, 
and to permit him to issue his own pardon would be an act 
of utter folly. 


CLAUSE 2. 

I’OWlUiS SHARED JOINTLY WITH SENATE. 

ILe shall have power, by and with the advice and consent of the Senate, 
to make treaties, provided two-thirds of the Senators present concur; and he 
shall nominate, and by and with the advice and consent of the Senate, shall 
appoint embassadors and other public ministers and consuls, judges of the 
Supreme Court, and all other officers of the United States, whose appoint¬ 
ments are not herein otherwise provided for, and which shall be established 
by law; but the Congress may by law vest the appointment of such inferior 
oft'icf.rs’as they may think proper, in the President alone, in the courts of law 
or in the heads of departments. 


[2; 2: 2] 


ii8 civiiv gove:rnme:nt oi? 

IV. Treaty-Making Power. —The President is given 
the power to make and enter into treaties by the Consti¬ 
tution for the reason that it is the custom of all govern¬ 
ments to repose in their executives the power to do so, and 
for the further and better reason that it is often necessary 
to conduct negotiations with foreign governments with 
secrecy and dispatch, which we could hardly expect to be 
possible if the Congress had the sole power to make and 
enter into treaties. P)Ut as ours is a representative gov¬ 
ernment, it is but just and right that the people should also 
have a voice in the exercising of a power that might mean 
so much to their future happiness and welfare. Hence, it 
is provided that before a treaty can go into effect it must 
receive the approval of not less than two-thirds oH the 
Senators present at the time the treaty comes up before 
the Senate for its consideration. But the President may 
enter into a treaty and make all negotiations concerning 
same without the ^^advice” of the Senate, which is seldom 
asked, but the treaty thus made and the negotiations thus 
entered into are subject to the approval or disapproval of 
the Senate. There are several instances on record of the 
Senate refusing to approve a treaty proposed and entered 
into by the President. 

But whether the President and Senate can make a treaty 
necessitating the payment of money out of the United 
States treasury, without the consent of the House of Rep¬ 
resentatives, is still an undecided question. All bills ap¬ 
propriating money must originate in the House of Repre¬ 
sentatives, and one thing is certain, that both the President 
and the Senate combined cannot compel the House to 
appropriate money if it does not wish to do so. But as a 
treaty requiring the payment of money, and which has been 
properly entered into by the President and the Senate, at 
least binds the honor of the nation, the House has never 


[2; 2: 2] 


rut UNITED STATES. 


II9 

yet felt that it was justified in refusing to appropriate the 
necessary amount, though it has done so several times 
under protest. 

V. Appointing Power. —This clause also gives the Pres¬ 
ident the sole power to nominate, and with the advice and 
consent of the Senate, to appoint all civil officers of the 
United States whose appointment is not otherwise provided 
for in this Constitution, except such inferior officers as 
Congress consents to allow him or the courts or the heads 
of departments to appoint without the consent of the 
Senate. The nominations are made by the President send¬ 
ing to the Senate a communication, in writing, designating 
the persons he wishes to appoint and the positions he de¬ 
sires each of them to fill.. If the Senate approves the 
nominations, the parties nominated thereupon receive their 
appointments and commissions. But the Senate very often 
refuses to confirm the President’s nominations, in which 
case he usually sends in others forthwith. During the 
recess of the Senate, however, the President has the power 
to make a temporary appointment which holds good until 
the end of the following session of the Senate (see next 
clause). 

It will be noticed that all civil officers of the United 
States, the President and Vice President only excepted, are 
appointed, whereas most of the state, county and other 
municipal officers are elected by the people. The reason 
for this is that, as it was the practice both in Eng¬ 
land and in the original thirteen colonies at the time of the 
adoption of this Constitution to appoint nearly all their civil 
officers, when the latter formed themselves into an inde¬ 
pendent nation it was incorporated in their fundamental 
law and has never since been changed. 

The power to appoint, when unlimited, necessarily carries 
with it the power to remove. This question was settled in 
Washington’s administration, to the extent that the Presi- 

[2:2:2] 


120 


CIVIIv gov^rnmknt or 


dent can remove all officers whom he can appoint, with the 
exception of United States judges, who hold office for life, 
or ‘'during good behavior.” But during Johnson’s admin¬ 
istration a bill was passed, known as the “tenure-of-office 
act,” providing that those civil officers of the United States 
who were appointed by the President with the consent of 
the Senate could be removed only in the same way. Also, 
another bill was passed declaring that no naval or military 
officer could be removed from the service in times of peace, 
except upon the sentence of a court-martial. The former of 
these bills, however, was afterwards amended, so that as 
the law now stands the President is given the power to 
suspend an officer until the end of the following session of 
the Senate, and make a temporary appointment in his place. 
If the senate during such session, however, refuses to con¬ 
sent to the removal of the old officer, he is again reinstated. 
But it will be seen that should the President be obstinate 
he ddn again suspend such reinstated officer and make anoth¬ 
er temporary appointment to fill the vacancy caused by the 
suspension. This mode of procedure, however, is very bad 
practice, as it tends to engender a feeling of hatred and dis¬ 
trust between the President and the Senate, and hence has 
seldom been resorted to. 

The term for which all Federal appointees hold office is 
for four years, unless sootier removed. But they may be 
removed for political reasons, as well as for their unfitness. 
During the early administrations the President in office 
made but few removals, and those only when such a course 
was necessary to improve the service. But in 1829, Andrew 
Jackson, upon his election to the Presidency, introduced 
the proposition into our politics which has been followed 
ever since, that “To the victor belongs the spoils,” and re¬ 
moved from office all persons who were active in opposing 
his election, filling the vacated positions with partisans of his 

[2:2:2] 


The: united states. 


I2I 


own. The effect of these changes, contrary to the expecta¬ 
tions of many, has not been at all disastrous to the conduct¬ 
ing of the business of the government, but their effect upon 
the politics of the country is quite a different thing. Well 
has it been said tliat ‘‘While politics have not very largely 
corrupted the civil service, the civil service has greatly cor¬ 
rupted politics.” So glaring, indeed, did this evil become 
at times that under the lash of public opinion Congress was 
prompted during Mr. Cleveland’s term to pass a law provid¬ 
ing that the appointees of certain branches of the civil ser¬ 
vice should, if they wished, hold their respective offices as 
long as they performed their duty well, and that vacancies 
should be filled by means of a competitive examination, 
coupled with the further and very important provision that 
the enforcement of this law in certain respects should be 
left entirely to the judgment of the President. Hence, as the 
law now stands, the President has the power to enforce it 
either in whole or in part, or not at all, as he sees fit. Under 
President Cleveland it was quite rigidly enforced, but under 
his successors there has been a considerable backslide 
towards the spoils system. It is our opinion, however, that 
in the not distant future public sentiment will compel the 
passage of an iron-clad civil service reform law—one that 
cannot be used to corrupt the politics of the country by any 
party or President whatsoever. 

The object of the framers of the Constitution in allowing 
Congress to authorize the President, or the courts, or the 
heads of departments, as the case may be, to have the un¬ 
limited power to appoint certain inferior officers without 
the consent of the Senate was two-fold: First, to avoid 
taking up the valuable time of the Senate with the consider¬ 
ation of the appointment of a horde of petty officers; and, 
second, so far as the courts and the heads of departments 
are allowed to appoint, to avoid taking up the time of the 


[2:2:2] 


122 


civiiv gov^rnme:nt Ol? 


President for a like reason. Congress has long since exer¬ 
cised this power and has authorized the appointment of the 
following officers in the following manner: 

1. All postmasters receiving salaries less than $i,ooo 
per annum are appointed by the Postmaster-General. 

2. Most bookkeepers, stenographers, clerks, etc., under 
the departments at Washington are appointed by the heads 
of their respective departments or of the bureaus thereof. 
But the chiefs of bureaus and the more important officers in 
each department are appointed by the President with the 
consent of the Senate. 

3. The clerks, bookkeepers and other subordinates in 
each custom house are appointed by the Chief Collector 
thereof. 

4. The Clerks of United States courts are appointed by 
the courts themselves. But United States District Attorneys 
and Marshals are appointed by the President with the con¬ 
sent of the Senate. 

All these inferior officers can be removed at any time by 
the same power that appointed them. 

' CLAUSE 3. 

APPOTNIMENTS. 

The President shall have power to fill up all vacancies that‘may happen 
during the recess of the Senate, by granting commissions which shall expire 
at the end of their next session. 

Vacancies in appointive offices very frequently occur, and 
this either because of physical reasons or because of a 
suspension by the President. But as the Senate is not 
always in session, and it would be decidedly unprofitable, as 
well as inconvenient, to convene it merely for the purpose of 
acting on nominations made by the President whenever a 
vacancy might take place, this provision authorizing the 
[2:2:3] 


} 


thp: united states. 


123 


President to make temporary appointments to fill vacancies 
occurring during the recess of the Senate was inserted. But 
the President is not compelled to make such appointments, 
and unless the same must be made directly in order that 
public business might not be hampered or delayed, it is 
usually the custom of the President to leave such office 
vacant until the next session of the Senate. 

SECTION 3. • 

OTHEU DUTIES Ol- THE PRESIDENT. 

Tie shall from tin'e to time give to the Congress information .of the state 
of the XTnion, and recommend to their consideration such measures as he 
shall judge necessary and expedient; he may on extraordinary occasions, 
convene both Houses or cither of them, and in case of disagreement between 
them, with respect of the time of adjournment, he may adjourn them to such 
time as he shall think proper; he shall receive embassadors and other public 
ministers; he shall take care that the laws are faithfully executed, and shall 
commission all of the officers of the United States. 

Under this section six duties are conferred upon the Pres¬ 
ident, as follows: 

First, he must from time to time inform Congress of the 
condition of the Union, and also recommend to its consider¬ 
ation such measures as in his opinion should forthwith be 
incorporated into laws. This is complied with by the Presi¬ 
dent sending to Congress at the beginning of each regular 
session a message which contains a general account of the 
doings of the Executive Department during the year just 
past, a brief summary of the reports of the several depart¬ 
ments and such suggestions and recommendations in regard 
to future legislation as he believes to be needful and neces¬ 
sary. It is also the custom of the President, when Congress 
is called to meet in extraordinary session, and at other times, 
to send it a special message for the purpose of making such 
recommendations or giving such information as the exigen- 

[2:3] 


124 


CIVIL govLrnmLnt or 


cies of the hour may demand. But Congress is not bound 
to follow the recommendations and suggestions of the Pres¬ 
ident, and it has often refused to do so. The first two Presi¬ 
dents, Washington and Adams, went to Congress in person 
and delivered their messages, receiving at the time a reply 
from each House. But when Jefferson became President 
he sent a written message and expected no reply thereto, 
which has been the custom followed by all of his successors. 

Second, for fear of the unexpected arising of special or 
extraordinary emergencies during the recess of Congress, 
which emergencies might demand its immediate action and 
attention, the President at such times is given the power 
by this clause to convene the Congress in special session. 
Thus far this has been done but twelve times. But the Pres¬ 
ident frequently convenes the Senate in extra session at the 
close of a regular session for the purpose of considering ap¬ 
pointments. It is the custom of the Presidents, when they 
calPk special session of Congress, to name in their procla¬ 
mations or special messages the reasons for which it was 
assembled. Congress is not confined merely to a consider¬ 
ation of those matters, however, but is at liberty to consider 
all other matters it so desires. Nor is there any limit to the 
time during which it may sit, except, of course, that it must 
terminate by limitation. Congress may also provide by law 
beforehand for the holding of a special session. This is 
done by adjourning at the end of a regular session to a time 
certain, which time certain must be between the date of 
such adjournment and the date on which the next regular 
session convenes. But if it adjourns sine die, it cannot again 
meet before the date on which the next regular session con¬ 
venes, unless upon a call by the President. 

Third, this section makes it the sole duty of the President 
to receive all embassadors and other public ministers from 
foreign nations. To “receive” an embassador is to recog- 


The: united states. 


125 


nize the country he represents as an independent sover- 
eignty. But before an embassador can be '‘received’’ or 
perform any public act he must present his credentials to the 
President at a formal audience held for that purpose, which 
is identical to what our embassadors must do before they 
can be “received” at the courts of other nations. But the 
President is not compelled to receive all embassadors hav¬ 
ing the requisite credentials, as in case of those representing 
countries that have not been generally recognized as inde¬ 
pendent sovereignties. And the President can also dismiss 
an embassador already received if he is personally objection¬ 
able to our government, in which case the country he was 
commissioned by appoints another in his stead; or if the 
ties of friendship between the nation he represents and our 
own are broken or greatly strained. Our embassadors may 
be rejected or dismissed from the courts of other nations for 
the same reasons that we can reject or dismiss theirs. Na¬ 
tions at the time of declaring war against each other invari¬ 
ably recall their embassadors, thus avoiding the humiliation 
of having them haughtily dismissed. 

The student will readily perceive that this duty of the 
President to receive embassadors is at times one fraught 
with grave responsibilitiy, and its nature can at once be 
understood when we consider that had any foreign nation 
during our Civil War recognized the embassadors of the 
Confederacy, such act would at least have interrupted our 
friendly relations with that nation, and perhaps would have 
led to open war between it and our own. 

Fourth, by virtue of this section the President has also 
the power to adjourn Congress to such time as he thinks 
proper, in case they cannot agree between themselves as to 
the time of adjournment. But in any event he cannot ad¬ 
journ it for a longer time than until the date fixed by law 
for the next regular session. The President has not as yet 

[2:3] 


126 


CIVIIv GOVERNMENT OE 


been called upon to exercise this power, but the time may 
come when the value of giving it to him will be plainly seen. 

Fifth, the duty imposed upon the President by this sec¬ 
tion to execute the laws of the land is by far the most impor¬ 
tant of them all. But this provision must be understood as 
meaning that the President directly, and through the execu¬ 
tive officers under his direction indirectly, must-^enforce such 
laws only as are on the statute books, and this whether he be¬ 
lieves such laws to be wise ones or not. And he must en¬ 
force them in the manner prescribed by law. If he attempts 
to enforce that as law which is in reality not law, or to 
enforce that which is law in a manner not authorized by 
law, or refuses or fails to enforce in a legal manner that 
which is law, he is amenable to the courts in the same man¬ 
ner as is any other officer, be he high or low. And, 

Sixth, under this section it is made the duty of the Presi¬ 
dent to present each officer appointed by him, which ap¬ 
pointment has received the approval of the Senate (except 
during its recess), with a writing to the effect that such 
officer has been appointed to a certain office, which writing 
must be signed by him and have the great seal of the United 
States affixed thereto by its keeper, the Secretary of State. 
This writing, thus signed and sealed, is called a commission. 
The reason for issuing commissions to such officers is to 
enable them without delay to show the source of their 
authority should the same be questioned, and thus protect 
the people in a great measure against the impositions of pre¬ 
tenders. But the President is not now called upon under 
this clause to commission such inferior officers as are ap¬ 
pointed by the courts or by the heads of departments, 
though Congress has the power to require him to do so. 

But it must be borne in mind that the acceptance of a 
commission or appointment is a necessary ingredient to its 
validity. If the party commissioned or appointed to a cer- 

[2:3] 


the united states. 


27 


tain office refuses to accept the same, such commission or 
appointment is void and another must be made which will 
be accepted. 

SECTION 4. 

IMPEACHMENT OF CIVIL OFFICERS, 

The President, Vice President, and all civil officers of the United States, 
shall be removed from office on impeachment for, and conviction of, treason, 
bribery or other high crimes and misdemeanors. 

From this section we learn that only “civil officers’’ of tile 
United States can be impeached. But who are such civil 
officers? Within the meaning of this section they are all 
judicial and executive officers of the United States, with the 
exception of military and naval officers, who are tried by 
court-martial. But Senalors and Representatives cannot be 
impeached, as they do not come within the definition of 
civil officers of the United States, but are instead the na¬ 
tional representatives in Congress of their respective states; 
although, as we have seen, they may be expelled by their 
respiective Houses. 

These ^^civil officers” may be impeached and removed 
from office for three causes only. First, for treason, which 
is defined elsewhere in this Constitution as consisting in 
“levying war against the United States, or in adhering to 
their enemies, giving them aid or comfort”; second, for 
bribery, which, as the term is herein applied, means the 
using of his office by an executive or judicial officer in such 
a manner as to be of advantage to some one, such officer 
actually receiving for such service either a pecuniary con¬ 
sideration or the promise of some future reward; and third, 
for “other high crimes and misdemeanors,” which may 
mean anything that Congress from time to time, as neces¬ 
sity requires, shall define as such. 


[2:4] 


128 


CIVIL govlrnmlnt ol 


ARTICLE III. 

THE JUDICIAL, DEPARTMENT. 

In the foregoing two articles we learned of the Legisla¬ 
tive Department, whose office it is to make the laws, and 
of the Executive Department, whose office it is to enforce 
the laws. In this article we will learn of the third and last 
department of our government, the Judicial Department, 
whose office it is to apply and interpret the laws. Thus, if 
a person is accused of the commission of some crime and 
arrested therefor, it is the duty of the Judicial Department 
to determine, in view of the facts proven, whether or not 
the law applies to that particular case, and if so, to what 
extent. So with civil suits. In such cases it is likewise 
the^luty of the Judicial Department to determine, in view 
of the facts deduced in the case, to what extent the law 
applies to the question or questions in dispute between the 
parties thereof. But the Judicial Department does not take 
cognizance of the interpretation or application of the laws 
unless the matter is brought directly before it by means 
of a suit or other legal proceeding instituted for that pur¬ 
pose. 

It is the duty of this department, also, to pass upon the 
constitutionality of laws and to determine just what they 
mean; or, in other words, to interpret and construe them. 
There is often a controversy over the meaning of a certain 
law, one party contending that it favors him and the other 
contending directly the reverse, whereupon the courts are 
often called upon to decide the question in dispute. In 
doing this they always take into consideration the intention 
and object of the Legislative Department in passing such 
law. The constitutionality or unconstitutionality of laws 
are determined in the same manner. Most laws are either 


TIIK UNITED STATES. 


129 


entirely constitutional or entirely unconstitutional. But 
there are some that are unconstitutional in part only and 
constitutional as to the remainder. In such cases, if the 
constitutional part is so independent of that which is un¬ 
constitutional as to permit of its standing alone, it must 
be upheld and enforced; but if otherwise, then the whole, 
law must be declared invalid. All courts—even justices of 
the peace and police courts—have the power to decide as 
to the constitutionality of laws in matters over which they 
have jurisdiction, but such questions are never put beyond 
dispute until the United States Supreme Court, in case of 
United States law, and the state supreme courts in case 
of state law, finally determine them. 

. SECTION I. 

ORGANIZATION. 

The judicial power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from time to time 
ordain and establish. The judges of both the supreme and inferior courts 
shall hold their offices during good behavior, and shall at stated times receive 
for their services a compensation which shall not be diminished during their 
continuance in office. 

Thus, we see that the Judicial Department of the United 
States consists of one Supreme Court and as many inferior 
courts as the Congress may from time to time, as may be 
demanded by the increase of business, ordain and establish. 
The creation of the Supreme Court by the Constitution is 
considered as its master-stroke, it having no prototype in 
the history of the World. But although the Supreme Court 
is a creature of the Constitution and can only be abolished 
by the power that gave it existence, yet the number of 
judges of Vvhich it shall be constituted was wisely left to the 
discretion of Congress, so that its organization can be 
changed from time to time as circumstances may demand. 

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9 


130 


civiiv. govkrnme:nt or 


As now organized this very important court is composed 
of one Chief Justice, who presides over the same, and eight 
Associate Justices. 

Of the inferior courts,, their number and manner of 
organization has been changed from time to time by Con¬ 
gress because of the rapid growth of the nation and the 
consequent increase in business, until they are now as 
follows: Nine United States Circuit Courts of Appeals, 
each of which is composed of one Justice of the Supreme 
Court and two Circuit Judges, but in case of the absence 
of any of these a District Judge may be called to serve in 
his place; nine United States Circuit Courts, each of whicl\ 
is composed of one Justice of the Supreme Court, one Cir¬ 
cuit Judge and one District Judge, but any two of these 
officials may hold court; and United States District Courts, 
one at least of them being in each state, each of which is 
co9;iposed of one District Judge. Besides these there are 
several special courts created by Congress under this sec¬ 
tion, as follows: One United States Court of Claims, com¬ 
posed of one Chief Justice and four Associate Justices; one 
Supreme Court for the District of Columbia; composed of 
one Chief Justice and four Associate Justices; and United 
States territorial courts in each organized territory. The 
latter two classes, however, are not, strictly speaking. 
United States courts, but simply local courts. 

The judges of all of these, except those of the territorial 
courts, hold their respective offices ‘‘during good behavior,” 
which virtually means during life. The only way they can 
be removed is by impeachment, though they may vacate 
their offices by resignation. But if any one of these judges 
has served not less than ten years and is seventy years of 
age he is entitled to his full salary during the remainder 
of his life, and this whether he serves after that time or not. 
The object held in view by the fathers when they inserted 


THE UNITED states. 


I3I 

this provision was to raise these judges above temptation 
and make them independent in their decisions. And to 
what extent they succeeded in their purpose let the long 
and almost untarnished list of our Federal jurists proclaim. 

This section also gives Congress power to fix the com¬ 
pensation which shall be received by each of these judges 
or justices, including those of the Supreme Court. At the 
present time their salaries range from $5,000 to $10,500 
per year. But this power is limited by the provision that 
such salaries shall not be diminished during their contin^ 
nance in office, though they may be increased at any time, 
and may be decreased to take effect as to all judges ap¬ 
pointed after the passage of the law. The object of this 
provision is to make the judicial branch entirely inde¬ 
pendent of the legislative. 

SECTION 2. 

JURISDICTION OF UNITED STATES COURT. 

CLAUSE I. 

KXTENT OF JURISDICTION. 

The judicial power shall extend to all cases, in law and equity, arising 
under the Constitution, the laws of the United States, and treaties made, or 
which shall be made, under their authority; to all cases effecting embassadors, 
other public ministers, and consuls; to all cases of admiralty and maritime 
jurisdiction; to controversies to which the United States shall be a party; to 
controversies between two or more states; between a state and citizens of an¬ 
other state; between citizens of different states; between citizens of the same 
state claiming lands under grants of different states, and between a state and 
the citizens thereof, and foreign states, citizens or subjects. 

The office of this clause is to define the extent of the 
jurisdiction of the United States courts in all cases of law 
and equity that may come l)efore them under certain con¬ 
ditions which we shall hereafter note and examine. But be¬ 
fore doing so it boots us to determine what is meant by the 

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CIVIL GOVLRNMLNT OR 


word “cases” and the phrase “in law and equity,” in order 
that we may understand the better what the powers of these 
courts really are. A case is a state of facts which furnislies 
occasion for the exercise of the jurisdiction of a court of 
justice. But before a court of justice can exercise juris¬ 
diction over the state of facts as furnished by a cas^ such 
case must be brought before it in the shape of an action or 
suit at law, or in the shape of an action or suit in equity, for 
courts cannot either apply or interpret the law unless the 
question in dispute is brought before them in a legal man¬ 
ner. The chief distinction between the two classes of 
actions is in their modes of procedure and in the relief 
obtained. In a civil action at lazv relief in damages only 
is granted, and the questions of fact in dispute must be 
tried by a jury, unless the same is waived, and the questions 
of law by the court. In a criminal action at law the ques¬ 
tions of fact must also be tried by a jury and those of law 
by the court. Criminal cases, however, cannot be tried 
in equity, but only in a suit at law. But it sometimes 
happens, in cases of a civil nature, that the relief awarded 
by an action at law, to-wit, damages in money, would not 
be an adequate and complete relief for the wrong done. 
For instance, suppose that in the year 1900 you took up 
a ranch on Nameless Creek, in the county of Somewhere,and 
with the ranch the first right to use the waters of said creek 
for the purpose of irrigating the same. Then suppose that 
early in 1901 another person took up a ranch on the same 
creek and above yours, and appropriated all the waters 
contained therein to his own use, leaving you without any 
and consequently destroying your crops. Of course you 
are entitled to relief for the injury done you, but by what 
means would you obtain tlfat relief? If you brought an 
action at law against the party injuring you, you could 
obtain a judgment in damages against him, but he might 


[3:2; 1] 


THE UNITED STATES. 


133 


not be worth anything and then, too, there would be noth¬ 
ing to prohibit him from again appropriating your water 
and destroying your crops in the year 1902 if he was so 
minded, and thus on indefinitely. In other words, no ade¬ 
quate and complete remedy is afforded you in a suit at law. 
In order to attain that desirable result you must resort to 
a suit in equity, which will give you full and complete re¬ 
lief by perpetually enjoining said party from using or de¬ 
taining so much of the waters of said creek as were orig¬ 
inally appropriated and used by you for the purpose of 
irrigating your ranch. This is only one of many instances 
in which relief can be obtained by means of a suit in equity;* 
but if a suit at law affords a complete and adequate relief, 
a suit in equity cannot be brought. 

In England and .in some of the states the courts grant¬ 
ing equity relief and those granting relief at law are sepa¬ 
rate and distinet from each other. In other states the same 
courts grant both legal and equitable relief, and this in the 
same action. But, as will be'noticed, the courts of the 
United States, as well as those in still other states, grant 
both equitable and legal relief, but in different actions hav¬ 
ing a different procedure. 

Having now learned what kinds of relief the United 
States courts can give and the manner in which it can be 
obtained, it at this time boots us to inquire into the kinds 
of cases at law and in equity that these courts can take 
jurisdiction of and grant relief in. By carefully taking note 
of this clause we find that the framers of the Constitution 
divided them into nine kinds, and in the order following: 

First, the United States courts can try all cases arising 
under the Constitution, laws and treaties of the United 
States. This is because these courts were mainly consti¬ 
tuted for that purpose, and they are the only ones that 
common sense and good judgment would suggest should 

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134 


CIVIIv GOVERNMENT OE 


have jurisdiction over such cases. This provision, however, 
does not, as is claimed by many, impliedly or otherwise 
permit the courts of the United States to take jurisdiction 
of cases arising under the common law, which consists of 
those customs and usages having the effect of law because 
of their antiquity, most of which were bequeathed to the 
colonies by the mother country and retained by them after 
they had won their freedom and independence. This is 
because the Departments of the national government can 
exercise only such power as is expressly or impliedly given 
them by the Constitution, and nowhere in that instrument 
is its Ji^idiciary Department in any manner authorized to 
take jurisdiction of cases arising under the common law. 
In construing and interpreting the Constitution, laws and 
treaties of the United States, however, the courts thereof 
always have recourse to the common law for the definition 
of terms. 

Second, they can also try all cases affecting embassadors, 
other public ministers and consuls, but as this provision 
means only all cases affecting them in their public capacity, 
it is provided by the law of nations that all cases affecting 
them in their private capacity must be tried by the laws of 
the country they represent. The reason for this is that as 
these are officers of foreign nations whom the United States 
is bound to protect, it being responsible for their treatment, 
as an act of respect and courtesy to the country they rep¬ 
resent, all cases affecting them should be tried in the United 
States courts, and not in the courts of any state. 

Third, under the Constitution United States courts have 
exclusive jurisdiction over all cases arising under the ad¬ 
miralty and maritime law of the nation; that is, of all cases 
of either a criminal or civil nature originating on the high 
seas or on our navigable waters (Article I., Section 8, 
clauses lo and ii). The reason for this is that most if 

[3:2:1] 


THE UNITED STATES. 


135 


not all admiralty and maritime cases arise without the 
jurisdiction of the states and hence should be tried by the 
national courts. 

Fourth, all controversies in which the government of the 
United States, either as plaintiff or as defendant, is a party 
must be tried in the United States courts, and this for the 
reason that as such controversies are of interest to the 
entire nation, they should not be left to the courts of the 
several states. The United States is plaintiff in all crim¬ 
inal cases prosecuted by it because of a violation of its law, 
and in all civil cases brought by it because of some legal 
claim it may have against one or more parties. But as the 
United States is a sovereignty, it cannot be made a de¬ 
fendant in any event, unless it consents to permit itself to 
be sued. This the government has done, and has consti¬ 
tuted the Court of Claims for that purpose, which is the only 
court in which one having a claim against it can have his 
rights determined in case the proper officers refuse to allow 
the same. 

Fifth, all controversies between two or more states must 
also be tried in the courts of the United States. This is 
because it is evident that these controversies could be tried 
nowhere else with propriety, unless it were possible to settle 
them by arbitration. And then we must remember that 
it is one of the chief duties of the national government to 
“insure domestic tranquillity,” which it could not do unless 
its courts had jurisdiction to try cases of this nature. 

Sixth, all controversies between a state and the citizens 
of another state are by this clause made triable in the 
United ^States courts. But this provision has been greatly 
modified by the XL Amendment to this Constitution, 
which amendment reads as follows : 

“The judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against any of the United States by citizens of another state, or by 
citizens or subjects of any foreign state.” 

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136 


CIVIL GOVERNMENT OE 


Hence, under this provision as amended the states can¬ 
not be made defendants in the United States courts in suits 
1)rought against them by citizens of other states, or by 
citizens or subjects of foreign states, but such suits must 
l)e brought in the state’s own courts, if it permits itself to 
be sued, and this for the same reason that suits against the 
United States must be brought in United States courts. 
But if a state is plaintiff in an action between itself and the 
citizens of another state, such action may be brought in 
the national courts. This latter was to avoid any irritation 
or bad feeling that might arise in case a state was com¬ 
pelled to sue the citizens of another state in the courts of 
such state. 

Seventh, this clause also permits controversies between 
citizens of different states to be brought in the United 
States courts. But the party or plaintiff bringing such 
controversy must commence same in the United States 
court having jurisdiction over the state or district in which 
the defendant resides, and the suit must be tried according 
to the laws of such state. Thus, if a citizen of California 
owes a citizen of Montana a sum of money exceeding the 
sum of $2,000, the citizen of Montana may sue him in the 
United States Circuit Court having jurisdiction over any 
of the districts in California; but such court will try the 
case according to the laws of California, and in satisfying 
any judgment that may be recovered the citizen of Cali¬ 
fornia will be entitled to the exemption allowed him by his 
own state laws. The reason for this provision is that al¬ 
though controversies of this nature do not arise under 
United States law, yet in order that both parties may secure 
a more impartial trial than could likely be had in the courts 
of any state where local prejudice or undue influence might 
tamper with the scales of justice, it was thought best to 
give the United States courts jurisdiction over such cases. 


[3:2: i] 


THE UNITED states. 


137 


Eighth, controversies between citizens'of the same state 
claiming lands under grants of different states may also 
be brought in the United States courts, and this for the 
reason that although the states are not direct parties to 
the action, yet indirectly they are involved in it, and hence 
it would be a flagrant bid to partiality, local prejudice and 
injustice to allow either of them to decide the controversy. 
This provision is at the present time of very little value, 
however, as the boundaries of each state and territory are 
now well-defined, and hence none of them can scarcely 
grant lands to which they have not a good and perfect title. 
But during the early days of the Republic, when state lines 
were loosely drawn and state jealousy still ran high, it was 
of the utmost importance in securing justice to the parties 
and in preventing state feuds. And 

Ninth, all controversies between states, or the citizens 
thereof, and foreign states, citizens or subjects may like¬ 
wise be brought in the national courts, subject to the pro¬ 
visions of the XI. Amendment, hereinbefore quoted. Un¬ 
der it as amended by said amendment the states or the 
citizens of any of them as plaintiffs may commence and 
prosecute their claims against foreign states or the citizens 
or subjects thereof in the courts of the United States. This 
is because as the United States are responsible for our 
treatment of foreign states, citizens or subjects, their courts 
should have jurisdiction over all controversies against 
them. But if the citizens or subjects of foreign states are 
the plaintiffs and any state is the defendant in a contro¬ 
versy, the same cannot be brought in the courts of the 
United States, but in the courts of such state if it permits 
itself to be sued. 


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138 


CIVIIv GOVERNMENT OE 


CLAUSE 2 . 

JURISDICTION OF SUPREME COURT. 

In all cases affecting embassadors, other public ministers and consuls, and 
those in which the state shall be a party, the supreme court shall have original 
jurisdiction. In all other cases before mentioned, the Supreme Court shall 
have appellate jurisdiction, both as to law and fact; with such exceptions and 
under such regulations as the Congress shall provide. 

Under this clause, in all controversies affecting- embas¬ 
sadors, other public ministers and consuls, and those in 
which any state shall be a party, the Supreme Court of the 
United States shall have original jurisdiction; that is, such 
controversies must be commenced in the Supreme Court, 
none of the other United States courts having the power 
to try the same, nor the courts of any of the states. This 
is because of the importance of the parties involved, and 
becsluse the United States is responsible for the treatment 
of the former and the acts of the latter. 

But although these are the only cases over which the 
United States Supreme Court has original jurisdiction, yet 
it has appellate jurisdiction over all other cases that are or 
can be tried in the other United States courts; that is, the 
decisions of the United States Circuit and District Courts, 
or those of the supreme courts of any of the states in mat¬ 
ters relating to the laws of the United States, may be taken 
or appealed to the United States Supreme Court for the 
purpose of having it review the same, both as to matter 
of law and fact, and either affirm the judgment of the lower 
court or reverse the same and send the controversy back 
from whence it came to be tried anew. But this appellate 
jurisdiction of the Supreme Court is subject to the regula¬ 
tion of Congress, and recently, in order to give it relief, 
it being years behind in its work. Congress created a Cir¬ 
cuit Court of Appeals in each of the nine judicial circuits 

[3:2:2] 


THi: UNITED STATES. 


139 


into which the nation is divided, having’ final appellate ju¬ 
risdiction in many cases that could formerly only be 
appealed to the Supreme Court. Cases involving the con¬ 
stitutionality of the laws of Congress, however, can only 
be tried on appeal by the Supreme Court. 

CLAUSE 3. 

TRIAL OF CRIMINAL CASES. 

The ti'ial of all crimes, except in cases of impeachment, shall be by jury; 
and such trial shall be held in the state where the said crimes shall have been 
committed; but when not committed within any state, the trial shall be at 
such place or places as the Congress may by law have directed 

(In this connection see Amendments V., VI., and VII.) 

By virtue of this clause the trial of all crimes committed 
in violation of the laws of the United States must be by 
jury; that is, by a body of twelve men, peers of the accused, 
impartially chosen. It is the province of a jury to decide all 
questions of fact in a criminal action, and also those of mixed 
law and fact, the questions of law being left to the decision 
of the court. No person can be convicted of crime in any 
United States court unless the jury trying his case unan¬ 
imously find him guilty of the crime with which he is 
charged. If they unanimously find him not guilty, he must 
be released at once and can never be tried on that charge 
again; but if they disagree a new trial must be had before a 
new jury. There is one exception to this provision, how¬ 
ever, in that impeachment trials cannot be by jury, nor can 
they be determined in any court of law. This is because an 
impeachment trial is not, strictly speaking, a criminal trial, 
but a political proceeding to remove an unworthy civil offi¬ 
cer of the United States from office, or to both remove and 
disqualify him; and hence, as we have hereinbefore seen, 
should be tried by a political body such as is the Senate. 

[3:2:31 


40 


CIVIlv governme:nt oe 


But the mere fact that an officer has been impeached and 
removed from office does not bar his being tried in the 
courts for any crime he has committed, which crime may 
have been the cause of his impeachment and removal. Trial 
by jury is considered one of the most important and stal¬ 
wart pillars of personal liberty. 

And as an additional safeguard to the personal liberty 
of one accused of crime, it is provided by this clause that 
no person shall be tried at any other place than in the state 
in which such crime was committed. This leaves the ac¬ 
cused among his acquaintances, enables him to obtain wit¬ 
nesses the more readily and very materially lessens his 
expenses. In conformity with the spirit of this provision 
there has been at least one United States District Court estab¬ 
lished in each state, having jurisdiction over all offenses 
against the Constitution and laws of the nation not punish¬ 
able; by death ; where the death penalty may be inflicted the 
United States Circuit Courts only have jurisdiction. But if 
a crime is not committed in any state, i. e., in the District of 
Columbia, on the high seas, etc., Congress has the right to 
specify where and in what court it shall be tried, which 
power it has long since exercised. Thus, for instance, in 
cases of crimes being committed on the high seas, Congress 
has provided that the same shall be tried in the United 
States District Court having jurisdiction over the state in 
which the vessel having the criminal in custody first arrives. 

SECTION 3. 

TREASON. 

CLAUSE I. 

DEFINITION AND TRIAL OF TREASON. 

Treason against the United States shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid or comfort. No person 
shall be convicted of treason unless on the testimony of two witnesses to the 
same overt act, or on confession in open court. ' 

[3:3:1] 


The: unite:d state:s. 


141 

As the term is herein used, treason, or, more properly 
speaking-, high treason (in order to distinguish it from that 
kind of treason resulting from a breach of the allegiance of 
private and domestic faith, called petit treason), is the most 
heinous civil crime a man can commit under the laws of any 
nation. , In effect it consists of an attempt to overthrow or 
subvert a government by the citizens or allies thereof, and 
therefore merits the severest punishment that can be dealt 
out by the law. But if high treason was left undefined, the 
government might declare certain acts to be such and pun¬ 
ish their commission as such, which in fact were not and 
did not merit so severe a punishment. This had taken place 
frequently in foreign nations, where persons not guilty of 
treason had been convicted of the same and made to suffer 
the death penalty, in order that their property might be 
confiscated or the unholy revenge of some person in author¬ 
ity satiated. Hence, to prevent any such occurrence in this 
country, the framers of the Constitution determined to 
define specifically and for all time, through this clause, in 
just what high treason should consist. This definition, that 
“Treason against the United States shall consist only in 
levying war against them, or adhering to their enemies, 
giving them aid or comfort,” is not entirely original, but 
was patterned in many respects after the English statute of 
treasons, passed during the reign of Edward III. (25 Edw. 
III., C. 2). 

But under this clause no person can be convicted of 
treason for merely conspiring against the United States, or 
for agreeing to levy war against them at a future time, or for 
agreeing to adhere to their enemies in case war is after¬ 
wards declared by giving them aid or comfort. These are 
treasonable offenses, to be sure, and are punishable in a less 
degree, but they do not constitute high treason. Before 
such a crime can be committed there must be an overt act; 


[3; 


142 


CIVIIv GOVl^RNMENT OE 


tliat is, neither citizens nor allies can commit hi^li treason 
proper unless they actually levy war against the United 
States or actually aid and comfort their enemies. 
And no person can be convicted of treason, unless he con¬ 
fesses in open court to having committed an overt treason¬ 
able act, or unless at least two competent witnesses testify 
that they saw him commit the same overt treasonable act,— 
not different overt treasonable acts. This is so provided 
because the gravity and the enormity of the offense natur¬ 
ally-prompted the framers of the Constitution to require 
that no person shall be convicted thereof except upon clear 
and unmistakable proof of his guilt. 

CLAUSE 2. 

PUNISHMENT OF TREASON. 

The Congress shall have power to declare the punishment of treason, but no 
attainder of treason shall work corruption of blood or forfeiture except during 
the life of the person attainted. 


We have seen that the last clause defines high treason and 
also prescribes the kind and quantity of proof necessary to 
convict one of same, but nothing is said therein as to how 
one convicted thereof shall be punished. Therefore, this 
clause, which leaves to the judgment of Congress under cer¬ 
tain limitations the punishment of treason, was inserted. 
These limitations are that no attainder of treason shall work 
corruption of blood or forfeiture of estate except during 
the life of the person attainted; that is, a conviction of 
treason under the common law'meant that, in addition to 
the person convicted being compelled to suffer a most hor¬ 
rible death by hanging, drawing and quartering, etc., all prop¬ 
erty he died seised of, together with his titles and honors, 
were forfeited and his blood corrupted so that his children 
could not inherit from or through him. d'his of course was 


[3-. 3:2] 


THE UNITED STATES. 


143 


a gross injustice to the innocent children of the condemned 
person, they being compelled to suffer for his sins even into 
remote generations, and to guard against the occurrence of 
which in our own fair land this restriction was placed on 
Congress in this respect. Under it the children of one 
convicted of treason can inherit from and through him, 
and his estate cannot be forfeited except during his own 
life, it reverting to his heirs upon his death. 

Congress has availed itself of the power reposed in it 
under this clause, by declaring that one convicted of high 
treason ^‘shall suffer death, or, at the discretion of the court, 
shall be imprisoned at hard labor for not less than five years, 
and fined not less than ten thousand dollars, * * * 

with incapacity to hold office under the United States.’^ 
Thus far no person has ever been convicted of treason 
against the United States. 

Treason may also be committed by one against the state 
in which he happens to dwell for the time being, as he owes 
allegiance to it as well as to the United States. The state 
constitutions and laws in this respect closely follow those 
of the United States. A notable case was the trial, convic¬ 
tion and execution of John Brown in Virginia, in i860. 


ARTICLE IV. 

RELATIONS OF THE STATES. 

SECTION I. 

STATE RECO-RDS. 

Full faith and credit shall be given in each state to the public acts, rec¬ 
ords and judicial proceedings of every other state, and the Congress may by 
general laws prescribe the manner in which such acts, records and proceedings 
shall be proved, and the effect thereof. 

[4:1] 



144 


CIVIL GOVERNMENT OE 


The public acts, records and judicial proceedings of one 
sovereign nation are never accepted with full faith and 
credit by the courts of another sovereign power; that is, 
they are not given the same faith and credit they receive in 
the nation in which they originated. And as the states are, 
so far as their relations with each other are concerned, in¬ 
dependent nations, the public acts, records and judicial 
proceedings of one of them need not have been accepted 
with full faith and credit l)y the courts of any of the others 
had it not been for this provision, the chief objects of which 
are convenience and the prevention of endless and vexatious 
litigation, which wpuld doubtless result were the courts of 
one state in a position to refuse to give full faith and credit 
to public acts, records and judicial proceedings of the others. 
But only three classes of documents originating in one 
state need be given full faith and credit by the courts of 
the others: 

Fhst, public docinucnts; that is, the constitutions and 
statute laws of the states. 

Second, public records; that is, properly recorded deeds, 
records of marriages, journals of the legislatures, etc. And, 

Third, judicial proceedings ; that is, judgments, orders and 
]irocesses of courts of record, and authenticated reports of 
decisions rendered. 

But before these public documents, etc., can be given full 
faith and credit they must bear proof of their being genuine, 
else a wide avenue would be left open to fraud. Hence, 
Congress, by this section, is given the power to prescribe 
the manner of such proof and the e ffect thereof, which power 
it has long since exercised by providing tluit public acts of 
one state shall be given full faith and credit in the others if 
they are authenticated by the attestation of the state secre¬ 
tary, with the great seal of the state affixed; public records, 
if they are certified to by the officer whose duty it is to have 


TIIK UNITED STATES. 


145 


charge over them ; and judicial proceedings, if they are 
attested to by the clerk of the court, with the seal thereof 
affixecf, and the certificate of the presiding judge. If public 
acts, records and judicial proceedings of other states are 
not thus authenticated or proven, no state need give them 
full faith and credit. 


SECTION 2. 

RELATIONS-OF STATES TO THE INHABITANTS OF 
OTHER STATES. 

CLAUSE I. 

PRIVILEGES OF CITIZENS OF EACH STATE. 

The citizens of each state shall be entitled to all privileges and immunities 
of citizens in the several states. 

The object of this clause is to prevent any state from 
denying to the citizens of other states who may be within 
its borders any privileges or immunities that it gives to its 
own citizens, and the reason for it is that as all 
these states, taken collectively constitute but one nation, 
and not a confederation of nations, it is plain that the least 
friction and best business and social results can be ob¬ 
tained by making intercourse between them as free as might 
be consistent with good government. Because of its pro¬ 
visions, for instance, a citizen of Montana going to New 
York, or Wisconsin, or any other state for that matter, 
will be entitled while in such other state to the same privi¬ 
leges and immunities that its own citizens enjoy. But a 
citizen of one state going into another cannot carry 
with him any special privileges he might have en¬ 
joyed while residing there. Thus, a person who is 
a voter in one state cannot become one in any other state 


10 


[4:2; ij 


46 


CIVIIv GOVERNMENT OE 


to which he may go until he has complied fully with the 
conditions imposed by the laws of such state. This is be¬ 
cause the imposition of such conditions does not in any way 
infringe upon the privileges guaranteed by this clause, but 
the same are simply police regulations designed to prevent 
fraud in voting. 

It is recommended that Section i of the XIV. Amend¬ 
ment be studied in this connection. 


CLAUSE 2. 

FUGITIVE CRIMINALS. 

A person charged in any state with treason, felony, or other crime, who 
shall flee from justice, and be found in another state, shall, on demand to the 
executive authority of the state from which he fled, be delivered up, to be 
removed to the state having jurisdiction of the crime. 

ly the olden time if a person wanted for crime in one 
nation escaped therefrom into another he usually escaped 
punishment also. But as the lightning express of progress 
and civilization gradually but surely approached nearer and 
nearer as the centuries rolled away to the top-most summit 
of Mount Perfection, it became the custom of all civilized 
nations to give up the fugitive criminals of their sisters that 
might be found within their borders, until now such custom 
is almost universal. This is accomplished by virtue of 
special treaties entered into for that purpose, called extra¬ 
dition treaties. But even where such treaties do not exist 
between nations, it is their custom as a matter of courtesy 
to deliver up to each other on demand their fugitives from 
justice. 

And since it is the custom of nations entirely foreign 
and independent of each other to do thus, with how much 
more propriety should it be the custom of each of the states 
to do likewise with the fugitive criminals of the others! 


[4:2:2] 


THE UNITED states. 


147 


Hence, that this end niig-ht be attained the easier and the 
better the framers of the Constitution inserted this clause. 

But the governor of a state on whom requisition is made 
for a fugitive criminal rarely surrenders him to the gover¬ 
nor of the state making the same until he satisfies himself 
of the merits of the case, and if it has no merits he cannot 
be compelled to honor such requisition. 

CLAUSE 3- 

FUGITIVE SLAVES. 

No person held to service or labor in one state, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor, but shall be delivered up on claim 
of the party to whom such service or labor may be due. 

This clause was inserted as another concession to the 
slave-holding states of the Sunny South, and is regarded 
by many as one of the primary causes of the Civil War. 

As slavery has been abolished this clause is now prac¬ 
tically obsolete, except so far as it applies to apprentices 
and other persons bound out to service for a term of years. 
Contracts of apprenticeship and servitude, however, are 
now very rare in the United States, some of them prohib¬ 
iting the same altogether, and hence what little remaining 
importance might have attached to this clause after the 
institution of slavery became a thing of the past has now 
been all but taken away. 

SECTION 3. 

NEW STATES AND TERRITORIES. 

CLAUSE I. 

ADMISSION OF NEW STATES. 

New states may be admitted by the Congress into this Union; but no 
new state shall be formed or erected' within the jurisdiction of any other 
state; nor any state be formed by the junction of two or more states or parts 
of states, without the consent of the legislatures of the states concerned, as 
well as the consent of the Congress. 


[4:2:3]. [ 4 : 3 :i] 


148 


CIVIIv GOVERNMENT OE 


One of the main contentions of the colonies prior to the 
Revolutionary War and which did much to bring on the 
same was that all privileges enjoyed by the parent state 
should also be enjoyed by them, or else they should be 
made into independent states. This of course was an en¬ 
tirely new doctrine in politics, for it had been during all 
precedent time the habit and custom of all nations to form 
any new territory they might acquire by either purchase, 
discovery or conquest into subject provinces or colonies. 
Never a thought had they of admitting their dependencies 
into equal political privileges with themselves, but gov¬ 
erned them arbitrarily and with a view of enriching the 
home industries at their expense. ‘‘The largest measure 
of self-government consistent with their welfare and our 
duties shall be secured to them,” was their motto, but 
beneath the cloak of these high-sounding words skulked 
the twin monsters. Greed and Avarice, leaving in their 
wate little but the horrid skeleton of despair. So after 
the cloud of battle had cleared away and a new government 
had been organized on the ruins of the old, it was deter¬ 
mined by the fathers that such government should not be 
allowed to make the mistake in this respect that its seniors 
in the sisterhood of nations had made, and hence this 
clause was inserted. The student will note that it provides 
that new states may from time to time be admitted by Con¬ 
gress into the Union; that is, may be taken into the Union 
at the time and under such conditions as Congress might 
see fit to impose, but when actually admitted into the 
Union shall be given the same rights and privileges as are 
enjoyed by the other states under the guaranty of this Con¬ 
stitution. This bold and radical departure from the old 
world method of treating new territory has been fraught 
with the greatest good to humankind, and has been one 
of the chief means of making our nation truly great. 


[4-3: i] 


UNITKD STATES. 149 

But the framers of the Constitution were not satisfied 
with this alone. They feared that through the power re¬ 
posed in Congress to admit new states into the Union it 
would be in a position to control the same by threatening 
to change their boundaries and even their very existence. 
For that reason they inserted the further provision that no 
new state shall be formed or erected within the jurisdic¬ 
tion of any other state without the consent of its legis¬ 
lature in addition to the consent of Congress; nor that 
any state shall be formed by the junction of two or 
more states or parts of states without the consent of the 
legislatures of all of the states affected, as well as that of 
Congress. But there is no limit to the power of Congress 
to form states from the territory under the jurisdiction of 
the United States, and. outside of the boundaries of any 
state. This was permitted because the reason for prohib¬ 
iting Congress from forming new states, etc., out of states 
already established without the consent of their legisla¬ 
tures is here absent. 

Under this clause several states have been formed out 
of states or parts of states previously existing, but much 
the greater number have been formed out of the organized 
territory of the nation. The method of admitting new 
states out of territory is not always the same, but the one 
usually resorted to is as follows: The legislature of a ter¬ 
ritory sends Congress a memorial asking to be admitted 
into the Union as a state. Congress then, if it thinks best 
to admit the same, passes what is called an ^‘enabling act,’’ 
which gives the people of the territory authority to call a 
convention through their legislature for the purpose of 
forming a constitution. This constitution is then submit¬ 
ted to them for their approval or disapproval. If it is 
approved Congress then passes an act admitting the terri¬ 
tory into the Union as a new state. But Congress may 


[4:3:1] 


CIVlIv GOVERNMENT OE 


150 

admit such territory into the Union without the people 
thereof approving the constitution submitted by the terri¬ 
torial convention, though it is the better policy not to do 
so. 


CLAUSE 2. 

TERRITORIES, 

The Congress shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to the 
ETnited States; and nothing in this Constitution shall be so construed as to 
prejudice any claims of the United States, or of any particular state. 

The object of this clause is to expressly repose in Con¬ 
gress the power to dispose of and govern all territory be¬ 
longing to the United States, and thus put the matter 
beyond all controversy. But even had this provision been 
omitted the government would still have had the power 
to dispose of and govern its territory, and this for the rea¬ 
son that to do so is an attribute of sovereignty. Had this 
clause been omitted, however, the rnanner in which terri¬ 
tory could be disposed of would have been different, for 
then the treaty-making power of the government, to-wit, 
the President with the consent of two-thirds of the Senate, 
instead of the Congress as at present, would have had the 
power to do so. But whether this clause had been in¬ 
serted or not, Congress as the legislative branch of the 
government would still have had the power to govern 
territory. All laws that Congress might pass for the pur¬ 
pose of either governing or disposing of territories, how¬ 
ever, must receive the sanction of the President or be 
passed over his veto, in the same manner as all other laws. 

Congress has but once exercised the power to dispose 
of territory, and that was in 1846, when it re-ceded to the 
state of Virginia all that part of the District of Columbia 


[4:3:2] 


The; uniti^d state;s. 


151 

lying south of the Potomac river. The power to govern 
territories, however, has been long since exercised by it, 
and in the following manner: To the unorganized terri¬ 
tory of the Union and to the District of Columbia Con¬ 
gress acts in the capacity of a state legislature and makes 
laws for their government directly; but in regard to the 
organized territories it has been the general policy of Con¬ 
gress to allow the people thereof to make their own laws, 
reserving to itself the right to reverse their acts if it is so 
minded, and to even go so far as to abolish their govern¬ 
ment. Then, too, the territorial governor and judges are 
appointed by the President with the consent of the Senate; 
so that in such cases Congress is really the governing body, 
though indirectly. 

The student will note that although this clause expressly 
gives Congress the power to dispose of and govern terri' 
tory, yet it does not give it the power to acquire territory. 
Why this was left out and the other two inserted is not 
known, for it would seem that they should all go together. 
But as the power to acquire territory, like the power to 
govern and dispose of the same, is an attribute of sove¬ 
reignty, the hands of the government are not tied in this 
respect. The only difference is that the treaty-making power 
of the government now has the right to do so; whereas, 
if it had Deen expressly disposed of as were the other two. 
Congress would have had that right. Thus, for instance, 
the Louisiana territory was acquired through a treaty en¬ 
tered into with Napoleon Bonaparte by President Jeffer¬ 
son, with the consent of two-thirds of the Senate. Con¬ 
gress as a branch of the government had nothing to do 
with the matter, except indirectly, and all other territory 
of the United States, whether acquired by purchase, by 
annexation, by discovery or by conquest has been made 
a part of the Union by the same power. 


[4:3:2] 


152 


civil, GOVERNMENT OE 


Tlie latter part of this clause, that nothing in this Con¬ 
stitution shall be so construed as to prejudice any claims 
of the United States, or of any particular state, was in¬ 
serted as a concession to North Carolina and Georgia, 
whose claims to certain territory had not yet been settled. 
But both of these states afterwards ceded the disputed dis¬ 
tricts to the national government, and thus the matter was 
settled without the necessity of a resort to arms. 

SECTION 4. 

FEDERAL GUARANTEES TO THE STATES. 

The United States shall guarantee to every state in this Union a republican 
form of government, and shall protect each of them against invasion, and on 
application of the legislature, or of the executive (when the legislature cannot 
be convened), against domestic violence. 


By virtue of this section the United States are pledged 
to guarantee to the states, and this whether they were a 
part of the Union at the time of the adoption of this Con¬ 
stitution or have since been admitted thereto, three things: 

First, a republican form of government; that is, the na¬ 
tional government binds itself to protect each of the states 
from the usurpations of one man or a few men whose 
intention it might be, and who have it in their power, 
to change a state government into a monarchy or an 
aristocracy. Fortunately no such occurrence has ever 
taken place, but should one at any time arise Congress 
alone would have the power to over-throw such govern¬ 
ment, by force if need be, and call upon the people of the 
state in which the same was usurped to set up one having 
republican institutions in its place. Instead of a tendency 
toward a more monarchial or aristocratic form of gov¬ 
ernment, however, the political history of at least most of 
our states shows a constant and happy trend toward a 
more democratic one. Whether or not the United States 
could compel the people of any state to have a republican 
[4:4:] 


UNITED STATES. 


153 


form of government even thong’ll they desired some other 
is a question left undecided, but perhaps by inference they 
could do so. Happily, no need for the exercise of this 
power, if it really exists, has yet arisen; nor is such an 
occasion likely to ever arise. 

Second, protection against invasion. Even had this pro¬ 
vision been entirely omitted from the Constitution, yet 
would it have been the duty of the national government 
to protect each and all of the states against invasion, and 
this for the reason that to attain such end was one of the 
principal objects for bringing the Union into being. Had 
each of the states felt that it was able to stand alone and 
defend itself, there would have been little need for their 
taking the course they did. The old adage, ‘^United we 
stand, divided we fall,’’ kept constantly ringing in their 
ears, and hence in order to ^^provide for the common de¬ 
fense” the national government was formed. The Execu¬ 
tive Department is the one whose duty it is to protect the 
states from inV’asion. And 

Third, protection against domestic violence; that is, against 
local disturbances taking place within a state and in vio¬ 
lation of the laws of such state. But for fear that the 
national government might take every little riot or dis¬ 
turbance as an excuse for interfering with the domestic 
affairs of the states and thus be in a position to menace 
the much prized right of home rule, it was further provided 
that no such interference should take place unless the 
legislature of the proper state, or the governor thereof, 
if it is not in session or the danger is too imminent to 
permit of its being convened, shall apply therefor. There 
are several instances on record where a state has applied 
to the general government for protection against domestic 
violence, but generally this was done only after the state 
authorities found themselves unable to cope with the dif¬ 
ficulty. But this protection must be withdrawn immedi¬ 
ately after such domestic violence is suppressed. The 


[4:4] 


154 


civil. GOVI^RNMKNT OC 


Executive Department is also the one whose duty it is to 
protect the states from domestic violence. 

It will be seen that no provision is made in this section, 
and indeed anywhere in the Constitution, in case any state 
has two or more rival state governments, each claiming 
to be the one legally chosen, and any or all of them ap¬ 
pealing to the national government for protection against 
the others. What course should be pursued in that event 
is a very’ delicate question, indeed; but the only correct 
answer would be, ])erhaps, that in case domestic violence 
is not resorted to the general government should take no 
heed of such appeals, but let the duly constituted state 
courts determine which set of officers is legally chosen. If 
domestic violence is resorted to, however, then it should 
obey the call of all the rival governments appealing to it, 
whether legal or not, suppress the disturbance and finally 
install the government in power which the state courts 
decide is the legal one. Other courses have been advo¬ 
cated by constitutional writers and commentators ; but it 
seems to us that this is the only one at all compatible with 
our institutions, and we believe that should at any time 
the question come uj) for final solution the course herein 
advocated would be determined upon as the legal one. 


ARTICLE V. 

AMKNDMKNTS TO THE CONSTITUTION. 

The Congress, whenever two-thirds of both Houses shall deem it neces¬ 
sary, shall propose amendments to this Constitution, or, on the application 
of the legislatures of two-thirds of the several states, shall call a convention 
for proposing amendments, which, in either case, shall be valid to all intents 
and purposes, as a part of this Constitution, when ratified by the legislatures 
of three-fourths of the several states, or l>y conventions in three-fourths thereof, 
as the one or the other mode of ratification may be proposed by the Congress; 
provided, that, no amendment, w’hich may be made prior to • the year one 
thousand eight hundred and eight, shall, in any manner, affect the first and 
fourth clauses in the ninth section of the first article; and that no state, with¬ 
out its consent, shall be deprived of its equal suffrage in the Senate. 

[Art. 5] 



THK UNITED STATES. 


155 


Realizing that change is the inexorable law of nature, 
and that in time the laws which in their days were best 
might in the hereafter become useless or worse than use¬ 
less, the fathers with their customary foresight inserted 
this article in order that the government they were found¬ 
ing, and which they fondly hoped and believed would live 
on as a beacon light of hope to all the world till time 
should be no more, might not be crippled in its youth or 
in its age. In order to permit the utmost possible latitude 
in amending this Constitution, two methods of proposing 
amendments are herein submitted. The first of these is 
that if in the opinion of Congress the Constitution needs 
altering they may by a two-thirds vote of each House pro 
pose the necessary amendment. This is done by Congress 
alone, the approval of the President not being necessary 
thereto. The second rs, th^t the legislatures of two-thirds 
of the states may petition Congress to call a Constitutional 
Convention, in which event Congress must do so. The 
convention thus called may also propose amendments to the 
Constitution. The reason for inserting this alternative 
method was to provide against the possibility of Congress 
refusing, either conditionally or otherwise, to propose some 
needed amendment. 

But whether an amendment is proposed by Congress 
or by the convention called for that purpose, before it can 
become valid and have the force and effect of law, it must 
be ratified by the legislatures (or by the conventions) of 
not less than three-fourths of the states; that is, by the 
legislatures of not less than three-fourths of the states re¬ 
maining loyal to the Union. 

It will be noticed that either of these methods of amend¬ 
ing the Constitution is somewhat difficult and complicated, 
and at best will require not less than one or two years’ 
time. This was purposely made so for the reason that the 
fundamental and highest law of the land should not be 
changed except for good cause, and then only after careful 
and weighty consideration. 


[Art. 5] 


56 


CIVIL GOVERNMENT OE 


But there are two restrictions on the power to amend 
the Constitution, the latter of which is still of much im- 
poVtance. The first of these is that no amendment shall 
be made prior to 1808 which shall affect the first and fourth 
clauses in the ninth section of the first article. It will be 
remembered that certain provisions of those clauses were 
inserted as a concession to the slave states of the South, 
and, to render them inviolable until the date after which 
the slave trade might be prohibited, this further provision 
was inserted in their interests and at their request. The 
second is that no state, without its consent, shall be de¬ 
prived by amendment of its equal suffrage in the Senate. 
This was inserted as an additional concession to the smaller 
states to appease their fear that, although they were given 
an equal voice in the Senate with the larger ones, yet that 
after the adoption of the Constitution the latter might by 
amendment do away with this equality. 

Thus far all propositions of amendments have been made 
by^Congress, and the state legislatures have made all rati¬ 
fications. To date there have been nineteen amendments 
proposed, fifteen of which have been ratified or adopted. 


ARTICLE VI. 

MISCELLANEOUS. 

CLAUSE I. 

PRIOR DEBTS AND ENGAGEMENTS. 

All debts contracted and engagements entered into before the adoption of 
this Constitution, shall be as valid against the United States under this Con¬ 
stitution as under the Confederation. 

In changing its form of government the United States 
did not become another nation, nor because of such change 
did it become released from the obligations it had entered 

[6:1] 


THK UNITED STATES. 


157 


into under the Confederation. And this would have been 
the case whether this clause had been included or not, 
under the provisions of the law of nations. It was in¬ 
serted, therefore, solely for the purpose of expressly g’iving 
notice to the world that the new government intended to 
keep faith with all nations and to live up to the engage¬ 
ments of the old. 

As a ^matter of course, all debts and engagements due to 
the United States before the change were equally binding 
after it was made. 


CLAUSE 2. 

SUPREMACY OF THIS CONSTITUTION. 

This Constitution, and the laws of the' United States which shall be made 
in pursuance thereof, and all treaties made, or which shall be made, under 
the authoritj’- of the United States, shall be the supreme law of the land; and 
the judges in every state shall be bound thereby, anything in the Constitution 
or laws of any state to the contrary notwithstanding. 

It would seem that this clause settles definitely and for 
all time the question of national supremacy, concerning 
which so much has been written and said. At least, if it 
does not, it should do so, for as we are one nation and not 
a confederation of nations, it would be simply suicidal to 
permit the states to obey only such parts of the Constitu¬ 
tion, laws and treaties of the United States as happened 
to conform to their fancy. Thus far but one attempt has 
been made to disobey the supreme law and still remain a 
part of the Union, and that was by South Carolina in 1832; 
but President Jackson with his proverbial promptness and 
decision speedily put a quietus to the same. Hence, we 
may safely now put it down as settled, and especially since 
the doctrine of state rights as advocated previous to the 
Rebellion received such severe treatment at the hands of 
Grant’s red-throated batteries, that the Constitution of the 
United States, the laws made thereunder and which are 

[6:2] 


58 


CIVIIv governme:nt oe 


either directly or indirectly authorized thereby, and the 
existing treaties constitute the supreme law of the nation 
and must be obeyed by all of the states, their constitutions 
and laws in conflict therewith notwithstanding, they being 
compelled to give way thereto. 

CLAUSE 3. 

OATH OF OFFICE. 

The Senators and Representatives before mentioned, and the members 
of the several state legislatures, and all executive and judicial officers, both of 
the United States and of the several states, shall be bound by oath or affirma¬ 
tion, to support this Constitution; but no religious test shall ever be required 
as a qualification to any office or public trust under the United States. 


The reason for requiring all members of the national 
Congress and of the several state legislatures, as well as 
the executive and judicial officers of both the United States 
and of the several states to be under oath or affirmation 
to Sl.tpport the Constitution of the United States is to 
impose upon them as great a feeling of responsibility as 
possible. All of the states also require their legislators 
and executive and judicial officers, to make an oath or 
affirmation to support their several state constitutions. 

In many, if not all foreign countries at the time of the 
adoption of this Constitution, and in many of the states 
of this Union, a religious test was imposed as one of the 
qualifications to hold office. But the fathers, learning 
from the bitter experience of the ag'es the undesirability 
of establishing a state religion or to in any way mingle 
religion with politics, took a step in advance of the times 
in which they “lived and moved and had their being,” and 
inserted the provision that no religious test shall be re¬ 
quired to render one eligible to hold a public office of 
honor or trust under the United States. At this time the 
wisdom of this provision is so apparent that many nations 
have adopted it either wholly or in part. By virtue of it 
any person of any religion, whether Christian or otherwise, 


[6:3] 


the: united state:s. 


159 


or of no religion at all, if he have the other necessary 
qualifications, may hold office under the United States. 
Several of the states, however, still impose a slight re'ti- 
gious test as one of the qualifications to hold office under 
them, but happily their number is on the decrease. 


ARTICLE VII. 

RATIFICATION OF THE CONSTITUTION. 

The ratification of the conventions of nine states shall be sufficient for the 
establishment of this Constitution between the states so ratifying the same. 

The convention that framed this Constitution was not 
called for that purpose, but for the purpose of revising the 
Articles of Confederation. When they met at Philadel¬ 
phia, however, they soon learned that this would be im¬ 
possible if the evils existing under the Confederation were 
to be done away with, so they determined to ignore 
entirely the old Articles and frame an entirely new form 
of government. The Continental Congress had provided 
that the work of the convention should be submitted to it 
and to the state legislatures for approval and ratification. 
But the convention, in disregard of the express instruc¬ 
tions of the Continental Congress, but in harmony with 
one of the great fundamental principles of the government 
they had framed, that the people are the sovereigns, sub¬ 
mitted their work for approval or disapproval directly to 
popular conventions in each of the states. This, however, 
in order to avoid the appearance of revolution as much 
as possible, was done in due form, by submitting the same 
to the Continental Congress coupled with the gentle hint 
that it be in turn submitted for ratification to a convention 
in each state called by the legislature thereof, but elected 
by the people. Congress ■ took the hint thus given and 
did as per request. In conformity to the wish of Con¬ 
gress all of the states except Rhode Island called conven- 

[Art. 7] 


l6o CIVIIv GOVERNMENT OE 

lions, it refusing to either do so or to ratify the Constitu¬ 
tion in any manner, until compelled to by the national 
government in 1790, it realizing that to allow an inde¬ 
pendent state to exist practically within its borders would 
be extremely dangerous to its own self-preservation. 

And in addition to submitting the Constitution for rati¬ 
fication to conventions elected by the people, instead of 
to the Congress and the state legislatures, the framers of 
the Constitution took another bold and revolutionary step 
by declaring that the ratification of the conventions of 
nine states should be sufiicient for the establishment of the 
same between such states; whereas, the Articles of Con¬ 
federation required the ratification of all of the states to 
make any change valid and effective. This was done for 
the reason that the delegates to the Constitutional Conven¬ 
tion well knew that the new form of government they had 
framed would never be able to go into effect if the ratifi¬ 
cation of all the states was necessary thereto, as the same 
would have been defeated by the refusal of Rhode Island, 
which all along opposed it, and by North Carolina. Hence, 
this provision, that in the event the Constitution should 
be ratified by nine or more of the states it was to go 
into operation only between the states ratifying it, was 
inserted. After it was submitted to them, nine states rati¬ 
fied it in rapid succession, after which Congress proceeded 
to make arrangements for putting the new form of govern¬ 
ment into operation by holding elections for presidential 
electors and for Senators and Representatives, and setting 
March 4th, 1789, as the date on which the same should 
be organized. Before the new government went into effect 
the Constitution had been ratified by eleven of the original 
states. 

Thus was accomplished a complete revolution in the 
form of government,—a peaceable revolution to be sure, 
but nevertheless a revolution. And may it be said to the 
ever-lasting honor and credit of the American people that 
it was accomplished in that manner, for the gruesome 
and blood-stained pages of history may be searched almost 
in vain to find a precedent therefor. 

[Art. 7] 


the; united states. 


i6i 


AMENDMENTS TO THE CONSTITUTION. 

The Constitution as originally framed has now been 
considered, three amendments, or parts of amendments, 
only having been commented upon in connection there¬ 
with. But although to us who have enjoyed the great 
privilege of living for a longer or shorter period under the 
beneficent influence of the government originated by it, 
it seems to be almost perfect, yet by many of the people 
of the original states who did not have the benefit of such 
influence the Constitution was looked upon with honest 
suspicion and distrust. Conse(|uently, it took the great¬ 
est efforts and persuasions of such men as Jefferson, Mad¬ 
ison, Hamilton and Jay to bring the ratification of the 
Constitution about. This was because it was claimed that 
it did not guarantee sufficiently the rights of the individual. 
The people had had more experience with the mother 
country in this respect than they wanted, and it was one 
of the chief causes of their not tolerating her protection 
longer. Hence, it is little to be wondered at that they 
should have looked with suspicious and jealous eyes on 
the new Constitution, which if ratified by the necessary 
number of states would confer on the general government 
much more power than it had under the Confederation, and 
which to them did not seem to guarantee many or very 
important rights to the individual. In other words, they 
feared that the new government would in time become 
a second England and flagrantly trample in the dust their 
much-loved and dearly-cherished right of personal liberty. 
For that reason, many of the states ratified the Constitution 
under protest and with the distinct understanding that 
as soon as possible after the new government went into 
operation the Constitution was to be amended in such a 
manner as to effectually bar the general government from 
encroaching on the rights of the people. Accordingly, the 
First Congress proposed twelve amendments to the same, 
the object of which was to attain this end, two of which 
11 


CIVIIv GOVERNMENT OE 


162 

were not ratified by the requisite number of states. These 
ten amendments collectively were called the^Bill of Rights.’’ 
They were patterned to a great extent after the famous 
Magna Charta which was wrung by the people from the 
reluctant hands of King John, and are the first ten that 
we shall hereafter consider. 

Seven other amendments have since from time to time, 
as necessity seemed to demand, been proposed by the Con¬ 
gress, five of which were properly ratified. These will, after 
the Bill of Rights, be given due consideration in the order of 
their ratification, together with the reasons that called them 
into existence. 

All proposed amendments to the Constitution which are 
ratified by at least three-fourths of the states have the same 
force and effect as the provisions of the original document 
remaining unchanged or unrepealed. 


ARTICLE I. 

(FIRST AMENDMENT.) 

freedom of religion, of speech and of assembly. 

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of speech, or 
of the press; or of the right of the people peaceably to assemble, and to peti¬ 
tion the government for a redress of grievances. 

It will be remembered that the chief incentive to the early 
settlers for coming to America’s wild and untilled, though 
fertile, shores was to escape the religious persecutions of 
their home countries and be in a position to worship the 
Creator “according to the dictates of their own conscience.” 
Hence, it is not at all to be wondered at that their descend¬ 
ants should cling to the great principle of religious freedom 

[Amend. I] 



THI^ UNITED states. 


63 


for the attainment of which their forefathers suffered and 
endured so much; for of all oppressions, history has taught 
that a religious oppression is the most bigoted, the narrow¬ 
est-minded, the most cruel, the most unjust and the most 
ungodly. But because the first provision of the First Article 
or Amendment provides that there shall be no state religion 
and that no laws shall be passed regulating any or all 
religions, it does not necessarily follow that the United 
States is not a Christian nation. It simply means that the 
people thereof may entertain any religious belief that best 
suits their fancies or temperaments, whether Christian or 
heathen, or no religion at all, as long as they do not inter¬ 
fere with or trample on the legal rights of others. Nor does 
it mean that the government itself is not Christian, for as a 
matter of fact it is Christian to the extent that its people are. 
And as they are mostly of that faith, the United States 
as a nation is recognized by all as one of the-greatest, if 
not the greatest, Christian nation in the world. 

The second provision of this article, that Congress shall ' 
make no law in any manner abridging the freedom of 
speech or of the press, is one of the most important clauses 
of the Constitution, for the reason that it is the most stal¬ 
wart guardian of personal liberty. It will be noticed that 
in all countries where the rights of the people are but a 
little or not at all respected the exercise of this right against 
the government is made a high crime. This is because 
only by secrecy and by deceit can tyranny flourish. In the 
open light of day and under the scrutiny of all eyes it can¬ 
not succeed, for tyranny loves only the dark and hidden 
paths. Hence, by giving to all the people the freedom of 
speech and of the press a premium so high was placed upon 
its head that it can scarcely find a hiding place within all 
this broad domain that will not be quickly exposed and 
razed to the level of the ground. But the right of liberty 

[Amend. I] 


164 


CIVIIv GOVERNMENT OE 


given by this provision to speak or write what we like does 
not mean that we are given the license to say or publish what 
may chance to come into onr minds about anybody or any¬ 
thing, and not be compelled to suffer the consequences if 
we have injured others. It means simply this, that every 
]:)erson has a right to speak or publish anything he or she 
likes, blit if any one suffers an injury therefrom such 
s|)eaker or piiblislier must be responsible therefor in dam¬ 
ages to the injured party, and, in addition, in extreme cases, 
criminally to the state. This is simply placing a proper 
restraint upon a beneficent right, which if removed would 
render it worse than worthless. “Liberty unbridled by wise 
and good laws is license.” 

The third and last provision, that the right of the people 
peaceably to assemble, and to petition the government for a 
redress of grievances, shall not be tampered with by Con¬ 
gress, is also extremely important, though it would seem to 
'be unnecessary under a republican form of government, 
" such as was organized by or under the Constitution. The 
only end attained by its insertion is to “make assurance 
doubly sure,” by putting the matter beyond controversy. 
lUit all public meetings and assemblies, whether political, 
religious or otherwise, must be held in such a manner as 
not to disturb or encroach upon the rights of others. 


ARTICLE 11. 

(SECOND AMENDMENT.) 

Till-: RIGHT TO BEAR ARMS. 

A well regnlated militia being necessary to the security of a free state, 
the right of the people to keep and hear arms shall not he abridged. 

The framers of the Constitution well knew that the most 
dangerous foe a free government -can have is a large 
[Amend. Ilj 



THE UNITED STATES. 


165 


standing army, for history has demonstrated too often that 
in the hands of ambitions and imscrnplous leader it may 
become the willing and' almost irresistible instrument of 
tyranny and oppression. But they also knew that even a 
republic cannot long survive unless the people thereof are 
in a position to defend their liberties from both foreign and 
domestic foes. So they inserted the provision that, “A 
well regulated militia being necessary to a free state, the 
right of the people to keep and bear arms shall not be 
abridged.” The effect of this is to encourage every citizen 
to constantly be on familiar terms with the use of arms, by 
guaranteeing him the rfght to always keep them at hand, 
and to encourag'e him to join the militia organized by the 
several states in order that should there be any necessity 
for bearing arms against the common enemy, he would be 
in a position to do so the more efficiently. It was in the 
citizen-soldiery that the fathers saw the hope of America, 
and not in the gilded cohorts of the regular army. And in 
this they were right, for by giving the people the right to 
keep and bear arms they have made the untrained citizen 
soldiers of this nation the handiest and best marksmen in 
the world, and consequently the best soldiers. (See Clause 
15, Section 8, Article I.) 


ARTICLE III. 

(THIRD AMENDMENT.) 

QUARTERING SOLDIERS. 

No soldier shall, in time of peace, be quartered in any house, without 
the consent of the owner; nor in time of war, but in a manner to be pre¬ 
scribed by law. 

To “quarter” soldiers in any house means to give them 
food and lodging. Prior to the Revolutionary War the 

[Amend. Ill] 



civil, GOVIvRNMKNT Ol^ 


166 

English were in the habit of quartering their soldiers on the 
colonists, and especially on those against whom the gov¬ 
ernment bore suspicions or ill-will. This of course was 
looked upon as a flagrant setting aside of the sacred doc¬ 
trine that “every mail's house is his castle,” in the enjoy¬ 
ment of which he should not be disturbed without his con¬ 
sent, and was one of the principal grievances of the colonics 
against the mother country. Hence, after they had won 
their freedom and established a government -of their own, 
it was but natural that they should provide therein that no 
soldiers shall be quartered on them in time of peace with¬ 
out their consent, which it is n^^edless to say is seldom 
granted. 

But in time of war soldiers must move about rapidly,- and 
often cannot carry sufficient food and sheltering with them, 
especially in winter. Hence, in order that the arms of the 
government might be facilitated in times so momentous 
to the people of the nation, the single exception that Con¬ 
gress may then, under proper regulations, quarter soldiers 
on the people was inserted. 

The “owner” mentioned in this article, whose consent 
must first be obtained before soldiers can be quartered on 
his premises, means the person in possession thereof, 
whether he owns the same or not. 


. ARTICLE IV. 

(FOURTH AMENDMENT.) 

IINWAKRANTAI5LE SEARCIIHS AND SEIZURES. 

The right of the people to be secure in their persons, houses, papers and 
effects against unreasonable searches and seizures shall not be violated, and no 
warrants shall issue, but upon probable cause, supported by oath or affirma¬ 
tion, and particularly describing the place to be searched, and the person or 
things to be seized. 


[Amend. IV) 



THE UNITED STATES. 


167 


The effect of this Article is to forbid the seizure of prop¬ 
erty, the arrest of persons or the search of buildings with¬ 
out legal authority, which authority is called a warrant. A 
warrant can only be issued after an oath or affirmation has 
l)een made by the party applying therefor, containing a 
statement of certain facts required by law, and then only 
by an officer duly authorized to issue same. The warrant 
must also describe the person to be arrested, the property 
to be seized or the place to be searched, as the case may be. 
If a warrant is not regular on its face, the officer serving it 
will be held liable in damages for any injury that may be 
occasioned thereby. 

The reason for this article is the same as that for the last 
preceding one. It also recognizes the maxim that “every 
man’s house is his castle.” 


ARTICLE V. 

(FIFTH AMENDMENT.) 

SFX’URITY TO LIFE, LIBERTY AND PROPERTY. 

No person shall be held to answer for a capital or otherwise infamo.ns 
crime, unless on a presentment or indictment of a grand jury, except in cases 
arising in the land or naval forces, or in the militia when in actual service in 
time of war and public danger; nor shall any person be subject for the same 
offense to be twice put in jeopardy of life or limb; nor shall be compelled in 
any criminal case to be witness against himself, nor be deprived of life, lib¬ 
erty or property without due process of law; nor shall private property be 
taken for public use without just compensation. 

One of the chief objects of both this and the next suc¬ 
ceeding Article is to secure to persons accused of crime 
every possible opportunity to prove their innocence, either 
liefore or during trial. The right to be secure from unjust 

[Amend. V] 



l68 CIVIL GOVERNMENT OE 

prosecutions, which often become persecutions, is very 
much cherished by the American people, and is one of the 
most substantial foundation stones on which their stately 
edifice of personal liberty is builded. It is their maxim that 
‘'It were better for nine guilty persons to escape their just 
punishment than that one innocent party should be un¬ 
justly punished.’’ Therefore, that .such end might be 
attained, this Article among other things provides that no 
person shall be compelled to stand trial for a capital or 
other infamous crime until indicted or presented by a grand 
jury, except in certain cases; that is, shall not be compelled 
to stand trial for any crime the penalty for the commission 
of which is death or imprisonment in a state or national 
penitentiary, the committer of which has not had a present¬ 
ment or indictment entered against him by twenty-four men 
impartially chosen for the purpose of inquiring into crim¬ 
inal charges against divers persons within a certain district. 
A phsentmcnt is a criminal charge in writing preferred 
against a person on motion of the grand jury itself; an 
indictment is a criminal charge in writing preferred against 
a person by a grand jury upon the complaint of some other 
person. But no presentment or indictment must be en¬ 
tered against a party unless there is sufficient cause, based 
upon probable evidence of guilt, to warrant his being called 
upon to answer before a petit jury. A petit jury is a com¬ 
mon jury of twelve men, the duty of which is to pass finally 
upon the truth of the fact in dispute. Then, too, the grand 
jury serves to protect persons from being compelled to 
suffer the trouble and expense of trial upon groundless 
accusations, and constitutes a bar to vindictive prosecutions 
by the government or by political or private enemies. But 
the requirement that a person can be tried for crime only 
after a presentment or indictment of a grand jury has been 
entered against him applies only to offenses committed 


[Amend. V] 


the: unite:d state:s. 


169 


against the United States. Oi¥enses committed against a 
state can be tried and punished in any manner such state 
sees fit to prescribe. 

The exceptions heretofore hinted at to this right of those 
accused of crime to have certain things done before they 
can be tried are in the cases of persons in the regular army 
or navy, or in the militia in time of war or public danger. 
This is because the efficiency of an army or navy lies almost 
entirely in a prompt and exact obedience to orders, and 
hence a more summary method of bringing supposed 
..offenders to trial must be had. As we have heretofore seen 
(Article L, Section 8, Clause 14), offenses committed by 
soldiers and sailors against the army and navy regulations 
are punishable by court-martial. But soldiers and sailors 
may also be tried by the ordinary courts, and in the ordi¬ 
nary manner, for any crime committed by them. Still 
another exception is that during actual war or insurrection, 
in the district where martial law may be proclaimed and 
the writ of habeas corpus suspended, citizens as well as 
soldiers may be tried and punished by court-martial. (Ar¬ 
ticle I., Section 9, Clause 2). 

Nor can any person charged with committing a crime 
against the United States be tried twice for the same 
offense; that is, if a jury has declared a person “guilty’’ or 
“not guilty” of a certain offense he cannot be tried again 
on the same charge. But if a jury disagrees he has not 
been put in jeopardy within the meaning of the word as 
contained in this Article, and may be tried before a new 
jury. Neither, in case a jury finds one “guilty,” and upon 
appeal to a higher court the verdict and judgment below 
was reversed, is the party put in jeopardy, and hence he 
may also be tried by a new jury. The reason for this pro¬ 
vision is to prevent a person from being punished twice for 
the same offense. 


[Amend. V] 


CIVIIv governme:nt oe 


170 

Neither can one accused of crime l)e compelled to give 
evidence against himself, though he may if he wishes. But 
he can testify for himself if he so desires, though this is also 
not compulsory. If he chooses to testify neither for nor 
against himself that fact cannot be taken into considera¬ 
tion to his prejudice by the jury, nor can it be commented 
upon in the argument of counsel. 

Nor can the United States government deprive any per¬ 
son of life, liberty or property without due process of law. 
By ^klue process of law” is meant a regular trial before some 
court of law, or under certain circumstances before a court- 
martial. This was inserted as an additional guaranty to 
personal liberty, and as a death blow, so far as this country 
is concerned, to the doctrine held by some that a ruler 
should have absolute- control over the lives, liberty and 
property of his people. The same is forbidden to the states 
by^ the Fourteenth Amendment. 

And, lastly, no private property can be taken for the use 
of the government unless the owner thereof has been paid 
its full value. It often happens that private property is 
taken for governmental purposes. Thus, if it is necessary 
to build a public road the government can take as much 
private property for that purpose as is needed, and this 
whether the owner thereof consents thereto or not. This 
is done under what is called the ‘Tight of eminent domain,” 
which is an attribute of sovereignty. If governments did 
not have this right, it would be almost impossible to under¬ 
take any great public work. But before private property 
can be taken for public use, the owner thereof must receive 
a just compensation therefor. What this compensation 
shall be is determined in two ways: First, by agreement 
entered into between the government and the owner; and, 
second, if they cannot come to an agreement between them¬ 
selves, the property is “condemned” under due process of 

[Amend. V] 


TlllC UNITED STATES. 


171 


law, and the value of the same is determined by a jnry 
ehosen for that purpose. Even in time of war it is the 
policy of the government to recompense loyal citizens for 
all property belonging to them which was seized by its 
army, but no compensation is ever made to rebels or foreign 
enemies whose property has been taken in such manner. 


ARTICLE VI. 

(SIXTH AMENDMENT.) 

TR7AL RIGHTS OF PERSONS ACCUSED OF CRIMF. 

In all criminal prosecutions the accused shall enjoy the right of a speedy 
and public trial by an impartial jury of the state and district wherein the 
crime shall have been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and cause of the accu¬ 
sation; to be confronted with the witnesses against him; to have compulsory 
process for obtaining witnesses in his favor; and to have the assistance of 
counsel for his defense. 

One of the most difficult tasks imaginable is the pre¬ 
scribing by an outraged and offended power of certain 
rules guaranteeing a fair and impartial trial to its off'enders, 
yet in this respect' the United States have succeeded per¬ 
haps better than they knew, although they were aware of 
tlie fact that as the standard of excellence of the criminal 
laws of a nation or state rises higher and higher in the scale 
of civilization the liberty of the citizen becomes to that 
extent more secure. Never before in the history of the 
world was there such an excellent code of criminal laws 
adopted as are provided for by this Article. Up to that 
time the criminal codes of all nations were more favorable 
to the offended government than to the accused, because it 
was thought that the safety of the government required 


[Amend. VI] 



172 


CIVIIv GOV^RNMIvNT or 


such a course, l)ut the people of the United States, being 
themselves the sovereigns, thought differently, and therein 
they showed their true fitness for self-government and won 
for themselves a tribute of never-ending praise. 

First among the rights guaranteed to one accused of 
crime is that he shall enjoy a speedy and piiblie trial. This 
was inserted as a safeguard to one who is unable to obtain 
bail from being detained in jail upon a criminal charge for 
an unreasonable time, and to secure a fair and impartial 
trial. By virtue of it such person must be tried as soon 
as possible after the date of his arrest, which is usually at 
the next term of court, unless for some good reason a delay 
is granted to the accused upon his application therefor. The 
provision that the accused shall have a public trial, in addi¬ 
tion to meaning that spectators shall be allowed to witness 
the proceedings of the trial itself, except in cases where the 
morals of the community might be injured, also means that 
the public shall have access to the records of the court, and 
that the press may publish accounts of such proceedings. 

And besides being speedy and public, the accused is 
also entitled to trial by a jury impartially chosen from the 
state or district in which the crime is alleged to have been 
committed. And this district or state cannot be created for 
the express purpose of trying some one arrested for crime, 
but must have been organized prior to the date on which 
the same was committed. The object of all this is to put 
the accused to as little trouble and expense as possible, and 
to secure to him an impartial trial among his acquaintances, 
as well as to guarantee to him freedom to a great extent 
from the effects of a hostile and partial public sentiment. 
Trial by an impartial jury is considered one of the greatest 
bulwarks of personal liberty. 

The accused must also be informed of the nature of the 
charge preferred against him, in order that he may be in 


[Amend. VI] 


Tlir: UNITED STATES. 


73 


a position to prepare his defense. This is done by deliver¬ 
ing to him a true and exact copy of the presentment or 
indictment, or upon demand, by showing him the original 
warrant or a certified copy thereof, or both. 

In order that the accused may be in a position to hear 
the testimony of all witnesses called against him, and thus 
be the better prepared to cross-examine them, either in 
person or by counsel, this Article gives him the important 
right to confront and cross-examine all witnesses against 
him. In this manner only is the real truth likely to be 
-'brought out. For the same reason the prosecution is given 
the right to cross-examine the witnesses of the accused. 

As the government impliedly had the right to issue pro¬ 
cesses compelling arbitrarily the attendance of witnesses to 
testify in its behalf in criminal actions, justice and impar¬ 
tiality also dictated that the accused be given the same 
right, and hence the provision to that effect in this Article. 
Had it not been thus, it would have been impossible in 
almost every case for the accused to produce evidence in 
his behalf, and therefore the great object of securing to him 
an impartial trial would have been defeated. The process 
used for arbitrarily compelling the attendance of witnesses, 
both for the state and for the defense, is called a subpoena. 

And, lastly, the accused shall have the right to be assisted 
in his defense by counsel, though if he wishes he may defend 
himself personally. The reason for this provision is that 
because of the technicalities and peculiar practices of tlie 
law no layman could hope to secure an impartial trial with¬ 
out the assistance of one learned therein and familiar there¬ 
with. So important, indeed, is this right thought to be 
that if the accused is too poor to hire his own attorney, the 
court will appoint one to act for him, the fees of such attor^ 
ney being paid by the government. 


[Amend. VI] 


174 


civil, GOVERNMENT OE 


xA.nd in addition to the guaranties given the accused by 
this Article, that grand old English inheritance of ours, the 
lex non scripta (unwritten or common law), has wrapped her 
protecting folds about him and declared that every such 
person shall be presumed innocent until proven guilty, and 
that the burden of proving him guilty lies upon the prose¬ 
cution ; that sufficient time must be given the accused to 
])re])are his defense; that the charges in the indictment or 
l)resentment preferred against him, must be definite and 
easily com])rehended; that no hearsay evidence must be 
admitted, either for or against him, on direct examination ; 
that the verdict of the jury must be cither “guilty” or “not 
guilty”; that the verdict must be “not guilty,” unless the 
jury is satisfied beyond a reasonable doubt from the evi¬ 
dence that he committed the crime with which he. is 
charged. 

It will be readily seen from the foregoing* that almost 
every guaranty consistent with the spirit of justice, good 
government and common sense has been given by the gov¬ 
ernment to its alleged offenders, and that the personal lib¬ 
erty of the people in this respect has been well secured. 


ARTICLE Vn. 

(skvi-:ntii amendment.) 

TRIAL RY JURY IN SUITS AT COMMON LAW. 

In suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be i)rescrved, and no fact tried 
by a jury shall be otherwise re-examined in any court of the United States 
than according to the rules of the common law. 

We have seen that the next preceding Article of the Bill 
of Rights guaranteed a trial by jury in criminal cases. The 


[Amend. VH] 



the: united states. 


175 


object of this Article is to j^uarantee a similar trial in all 
common law cases where the amount in controversy ex-'' 
ceeds the sum of twenty dollars. Cornmon law cases are all 
cases of a civil nature, except those arising under the admir¬ 
alty and maritime law and under the rules of equity. There 
is this difYerence, however, between the guaranties of this 
Article and of the last in regard to trial by jury, that all 
criminal cases must be thus tried, while all civil cases nerd 
not be, but may be tried by the court sitting without a jury, 
if the parties interested agree thereto and the consent of the 
-judge in certain cases is first obtained. 

But for fear that the Supreme Court of the United States, 
which is given by Article III., Section 2, Clause 3, appellate 
jurisdiction both as to matters of law and fact, might con¬ 
strue this to mean that it could rehear all matters of fact 
tried by a jury in civil cases in the lower courts, the further 
provision that no fact tried by a jury in common law cases 
‘‘shall be otherwise re-examined in any court of the United 
States than according to the rules of the common law,” was 
inserted. These rules, so far as they apply to this pro¬ 
vision, are that in common law cases the questions of fact 
must be tried by a jury unless the same is properly dis¬ 
pensed with, and the questions of law by the court; and 
that if after such case has been tried by the court and jury, 
and the judgment and verdict has been reversed or set aside 
on appeal by a higher court, then a new trial must be had in 
the same court that originally tried the case, and before a 
new jury. The reason for this provision was to interpose 
the barrier of a jury trial to oppression by the government. 
Had it not been inserted, the object for the attainment of 
which jury trials were provided might have been defeated, 
as there is no jury in the Supreme Court in appealed cases. 

[Amend. VII] 


176 


CIVIIv GOVERNMENT OE 


ARTICLE VIIL 

(EIGHTH AMENDMENT.) 

EXCESSIVE BAIL, FINES AND PUNISHMENTS FORBIDDEN. 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. 

Bail is the security given by a certain number of free¬ 
holders that the person accused of crime will appear and 
stand trial at the proper time and place, in consideration 
of his being released from the custody of the officers of the 
law in the interim. A fine is a sum of money imposed by a 
court as a punishment for some penal offense. The mean¬ 
ing of cruel and inJmman punishment as herein used is some¬ 
what indefinite, though it perhaps refers to such punish¬ 
ments as ducking, whipping, burning at the stake, torturing 
on ^he rack, drawing and quartering, etc. 

It will be readily understood why excessive bail and fines 
and cruel and inhuman punishment were forbidden when 
we consider that they were but a few of the grievances 
against which our forefathers rebelled. 


ARTICLE IX. 

(NINTH AMENDMENT.) 

PERSONAL RIGHTS NOT TO BE CONSTRUED STRICTLY. 

The enumeration in the Constitution of certain rights shall not be con¬ 
strued to deny or disparage others retained by the people. 

We have already seen that the people expressly reserved 
to themselves certain rights, but it was found both imprac¬ 
ticable and impossible to enumerate all of them. Hence, 


[Amends. VIII—IX] 



THE UNITED states. 


177 


I 

in order to remove the fear that the government might 
attempt to trample on all those not mentioned in the Con¬ 
stitution or Amendments this Article was inserted. 


ARTICLE X. 

(TENTH AMENDMENT.) 

POWERS RESERVED BY THE PEOPLE. 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the states, are reserved to the states respectively, or to the 
people. 

We have seen that the theory on which the structural 
work of our national government was reared is that the 
people are the sovereigns and that from them emanates 
all authority, all law. When these people for their own 
protection and advancement concluded to form a national 
government, it was their intention that such government 
should be one of limited powers; that is, one having onl}' 
such powers as were expressly given to it by the Consti¬ 
tution, and such other powers as could be implied from 
these. In other words, it was the intention of our fore¬ 
fathers to bestow upon the national government they had 
formed no power ex proprio vigora, and this for the reason 
that had they intended otherwise they would have given 
up all their sovereignty to the general government, which 
of course could not be tolerated after their bitter expe¬ 
rience with the sovereign powerr of England. They were 
determined that no central government strong because of 
its having unlimited power should rule over them. In¬ 
stead, their every thought and intention was to limit and 
decentralize the power of such government. Although at 
the time their intentions and wishes in this respect were 


12 


[Amend. X] 



178 


CIVIIv govi^rnme:nT or 


very well and clearly known and understood, yet they were 
not satisfied, for they feared that as the years slowly but 
surely rolled away into ^^eternity’s shoreless sea” this in¬ 
tention of theirs would be forg-otten or disregarded and 
the Constitution be construed as giving to the government 
of the United States unlimited power; and thus destroy 
in the fleeting of a breath the great structural work that 
had cost them so much blood and treasure to build. 
Hence, in order that this should not be, they expressly 
declared by means of this Article that all powers are re¬ 
served to the people or to the states (which means prac¬ 
tically the same thing), except those which are delegated 
to the United States by this Constitution or forbidden by 
it to the states. The result of this is that the Supreme Court 
cannot under any circumstances now construe the Consti¬ 
tution to mean that the government organized under it has 
any other powers than those expressly granted it therein, 
and such others as may be fairly implied from the same; 
also,* to prevent the state supreme courts from construing 
as valid such laws as are not forbidden by the respective 
state constitutions but are in violation of that of the United 
States. This latter end would have been likewise attained 
if the state constitutions had forbidden their legislatures 
to pass such laws as they are forbidden to pass by the 
United States Constitution, for the state governments, un¬ 
like that of the United States, have power ex proprio vigora, 
they being in effect the people. But lest certain powers 
extremely liable to abuse might not be prohibited by the 
constitutions of some of the states, or that their lack of 
uniformity might result in evil, it was thought best to 
prohibit the same to the states through the United States 
Constitution. 


[Amend. X] 


the: UNITe:d statics. 


179 


ARTICLE XI. 

(ELEVENTH AMENDMENT.) 

PROHTRITTON ON STATKS BRING SURD IN UNITRD STATUS 
COURTS. 

The judicial power of the United States shall not be construed to extend to 
any suit in law or equity, commenced or prosecuted against one of the United 
States by citizens of another state, or by citizens or subjects of any foreign 
state. 


At the close of the War of the Revolution both the 
United States and the states were heavily burdened with 
debts incurred during the progress of that struggle, and 
for the purpose of aiding in the carrying on of same. The 
United States, of course, in order to secure to itself the 
honor, respect and confidence of the nations of the world, 
and to comply with the requirements of international law, 
undertook the full satisfaction of its debt. But most of 
the states were not in a position to pay their debts on 
demand, and some of them were so deeply involved that 
they could never discharge the same. So, in order that 
they might not be compelled to pay their debts, except 
when they desired to do so, or if they wished, to repudiate 
the same altogether, this Amendment, which is a result of 
a decision of the United States Supreme Court that under 
Article III., section 2 of the Constitution, the United States 
courts could compel the states to pay all debts owed by 
them to citizens of other states, was inserted. Its effect 
is to free the states from all fear of the national govern¬ 
ment compelling them to pay their debts before they are 
ready or in a position to do so, or from compelling them 
to pay such debts as they desire to repudiate. In other 
words, it has the same effect in respect to the states as a 
bankruptcy law has in respect to individuals. Most of 
the states, however, in their own good time have paid their 

[Amend. XI] 


l8o civil. GOVE:RNMIvNT oi^ 

debts in full, but some of them have repudiated a part 
thereof. 

Since this Amendment was adopted the only way to 
compel a state to pay a debt is through its own courts, 
if it has consented expressly to permit itself to be sued, 
and even then there must be an appropriation for that 
purpose by the legislature of such state before it can be 
satisfied. The usual method for all the states to settle 
their obligations, however, is by legislative appropriation 
without suit. 

Although this provision does not permit the states to 
be sued in the courts of the United States, yet such parts 
of them as counties, cities, townships, etc., may be and 
often are sued in the national courts by citizens of other 
states. 


ARTICLE XII. 

(TWELFTH AMENDMENT.) 

ELECTION OF PRESIDENT. 


It will be remembered that this Amendment was adop¬ 
ted as a substitute for the original Clause 3, Section i, 
Article IL, in the place and order of which it was fully 
discussed, so it is unnecessary at this time to either give 
or treat the same. We will only add that this Amend¬ 
ment was ratified in 1804, and was adopted to the Consti¬ 
tution as a precautionary measure against the occurrence 
of the dangers that might grow out of circumstances sim¬ 
ilar to those which surrounded the disputed election of 
1801. 


[Amend. XII] 



TIIK UNITED STATES. 


, l8l 


ARTICLE XIII. 

(THIRTEENTH AMENDMENT.) 

Ar.OEITION OF SLAVERY. 

Neither slavery nor invcltmtary servitude, except as a punishinent for 
crime, whereof the party shall have been duly convicted, shall exist within the 
United States, or any place subject to tbeir jurisdiction. 

Congress shall have power to enforce this article by appropriate legislation. 

This Anieiulnient and the two next succeeding- ones were 
— one of the first fruits of the Civil War, and were dcsigiigd, 
in the order in which they come, to abolish slavery, to 
bestow upon the liberated slaves full citizenship, and to 
give them the privilege of voting. 

As the Constitution now stands slavery in the United 
States, and in all forts, arsenals, dockyards, territories, etc., 
snbject to their jurisdiction, is absolutely forbidden; and 
cannot be legalized either by act of Congress or by treaty 
entered into for that purpose. 


ARTICLE XIV. 

(FOURTEENTH AMENDMENT.) 

MISCELT.ANEOUS PROVISIONS RELATING TO RECONSTRUCTION 

SECTION 1. 

CITIZENSHIP AND THE PRIVILEGES INCIDENT THERETO. 

All persons born or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the. United States and of the state in which 
they reside. No state shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the Ignited States; nor shall deprive 
any person of life, liberty or property, without due process of law, nor deny 
to any person within its jurisdiction the equal protection of the laws. 

[Amends. XIII—XIV] 



i 82 


civil, governmi^nt or 


One of the objects of this section is to define specifically 
who arc and who are not citizens of the United States. 
IVevioiis to its adoption there had been nuich doubt on 
that ])oint. Of course, prior to such event slaves were 
not citizens of the United States, but as to the exact 
])olitical status of free negroes there was much dispute. 
At this time there can be no doubt as to who are and who 
are not citizens of the United States, for all persons, 
whether white, black or any other color, l)orn within the 
jurisdiction of the same, except Indians not taxed, are 
citizens thereof, as are all persons born without the United 
States but who have liccome citizens of the same by nat¬ 
uralization. But no Chinaman, as the law now stands, 
can l)ccome a citizen of the United States by naturalization, 
though he may by birth. The fact that one is not a citizen 
of the United States, however, does not bar him from 
becoming a citizen of any of the states. Thus, we have 
scen^^that if a person is a resident of a state for a certain 
length of time he may be a voter of such state, and hence 
a citizen thereof, though he is not a citizen of the United 
States. But a person cannot become a citizen of more 
than one state at the same time, and this because to be 
a citizen of a state one must be a resident thereof. 

Another object was to place a limitation on the jxjwer 
of the states by providing that the privileges of citizens 
of the United States shall not be abridged by any of the 
states, and that no state shall deprive any person, regard¬ 
less of his color or previous condition of servitude, of life, 
liberty or jiroperty without due process of law. This lim¬ 
itation was designed i)rimarily as a barrier to prevent the 
Southern states from denying to their emanci])ated slaves 
any rights which a white citizen of the United States might 
enjoy under the laws thereof; and also to prevent them 
from denying to such persons the equal i)rotection of life, 
liberty and property under the laws of the several states 
as may be enjoyed by the white citizens of the same. This 
is in accordance with the principle set forth in the Decla- 

[Amend. XIV] 


TIIK UNITKI) STaTKS. 


ration of Tn(le])cmlencc, “tliat all men arc created equal ” 
etc., which previous to the issuing of the emancipation 
])roclamation had been construed to apply to all classes 
of persons except slaves. But it will be noticed that this 
provision is in its nature j:^-eneral, the word ^slavc” or any 
other word of limitation not bein^ used therein, and hence 
as it now stands the United vStates can protect any and all 
persons residing within a state a.^fainst the oj)[>ression 
thereof. Bxcept in the case of the slaves this power has 
never been exercised, nor has there been any need that it 
should he. 


ShXTfDN 2. 

APJ'C^irnONMICNT OF KEI’KKSICNTATIVKS. 

Keprescnlatives shall be apportioned among the several states according 
to their respective numbers, counting the whole number of persons in each 
state, excluding Indians not taxed. But when the right to vote at any election 
for the choice of electors for President or Vice President of the United 
States, Representatives in Congress, the executive and judicial officers of a 
state, or the members of the legislature thereof, is denied to any of the male 
inhabitants of such state, being twenty-one years of age, and citizens of the 
1‘nited States, or in any way abridged, except for participation in rebellion 
cr other crime, the basis of representation therein shall be reduced in the pro- 
[)ortion which the number of male citizens shall bear to the whole number of 
male citizens twenty-one years of age in such state. 

Every ten years the Conj:);-ress of the United States ap¬ 
portions out to the several states the number of members 
each shall have in the national House of Representatives 
during- the ten years succeeding. Under Section 2 , Art¬ 
icle I., of the Constitution as originally framed, the basis 
for determining this number was to count all persons re¬ 
siding within the United States, except Indians not taxed 
and three-fifths of all slaves, and each state was given the 
number of Rej^resentat'ives in proportion to which its p<^)j>- 
ulation thus enumerated bore to the pojnilation of the 
nation counted in a like manner. But after the aliolition 
of slavery, it became apparent that some inducement had 


[Amend. XIVJ 


184 


CIVIL GOVCRNMCNT OR 


ought to l)e held out to the Southern states to give the 
liberated negroes the ecjual privilege to vote with the white 
citizens, for it must be remend^ered that each state has 
the right to determine who shall and who shall not be 
entitled to the privilege of voting within its borders. 
Hence, this section, which changes the basis of represen¬ 
tation from that mentioned above to the whole popidation 
of the nation, excluding only Indians not taxed, thereby 
increasing the representation of the Southern' states in 
Congress if they accepted the inducement offered, was in¬ 
serted. lUit it will be noticed that this section does not 
compel them to give to the blacks the equal jirivilcge of 
voting with the whites, however much of an inducement 
it may hold out to them to do so. This object, however, 
is accomplished by the Fifteenth Amendment, where it will 
be given due attention. 


> SECTION 3. 

DISAIUCITIES OF REBELS. 

No person shall he a Senator or Rejiresentativc in Congress, or elector, 
or President, or Vice President, or hold any office civil or military, under the 
United States, or under any state, who, having previously taken an oath as a 
member of Congress, or as an officer of the United States, or as a member 
of any state legislature, or as an executive or judicial officer of any state, to 
support the ConstitUticn of the United States, shall have engaged in insurrec¬ 
tion or rebellion against the same, or given aid or comfort to the enemies 
thereof; but Congress may, l)y a vote of two-thirds of each House, remove 
such disability. 

Under section 3, Article HI., nearly every white male 
capable of bearing arms in the Confederate states, and 
many of the females, were traitors to the United States, 
and liable to be punished as such. But the national gov¬ 
ernment, being “heir to all the ages and foremost in the ' 
files of time,” did not choose to inflict so severe a punish¬ 
ment on those who had been at one time a part of her very 
being, so to speak—not even on the prime instigators and 

[Amend. XIV] 


the united states. 


85 


leaders of the Rebellion. Besides, the United States 
thought that if they returned good for evil and charitably 
forgave their rebellions members the work of reconstruc¬ 
tion would be with much less difficulty accomplished. But 
they also thought that some sort of a mild reproof had 
ought to be administered to the seceded states, in order 
that they might not make the mistake that they were con¬ 
ferring a favor upon the United States by returning again 
to the fold. Hence, this section, the primary object of 
which was to prevent all state or national officers, whether 
legislative, executive or judicial, who had previously taken 
.>an oath to support the Constitution of the United States 
but who afterwards broke the same by participating in the 
Rebellion, from holding any office whatever under the 
United States or any of the states unless Congress by a 
two-thirds majority of each House saw fit to forgive these 
also, was included in this Amendment. 

But although the above provision was meant primarily 
to apply only to those who broke their oaths of office to 
support the Constitution of the United States during the 
War of the Rebellion, yet the student will note that it is 
general in character, and therefore stands as a warning to 
all those in a like situation not to engage in any future 
rebellion against the supreme constituted authority. This 
provision, however, does not prevent Congress from in¬ 
dicting a much heavier punishment on a rebellious people 
if it so desires. 

It will also be noted that the President’s power to pardon 
is somewhat limited by this section, as Congress only has 
the power to pardon the class of traitors enumerated there¬ 
in to the extent that they may hold office under the United 
States or any of- them. 

The disabilities of all but a few of those directly referred 
to in the above have from time to time been removed by 
Congress. 


[Amend. XIV] 


CIVIL GOVERNMENT OE 


I 86 


vSECTION 4. 

vSTATUS OF THE PUBLIC DEBT AND OF THE REBEL DEBT 

The validity of the public debt of the United States, authorized by law, 
including debts incurred for payment of pensions and bounties for services 
in suppressing insurrection or rebellion, shall not be questioned. But neither 
the United States nor any state shall assume to pay any debt or obligation 
incurred in aid of insurrection or rebellion against the United States, or any 
claim for the loss or emancipation of any slave; but all such debts, obligations 
and claims shall be held illegal and void. 


Very little explanation is needed of this section. Tt 
means simply what it says: that all debts incurred by the 
national government, in suppressing the Rebellion in what¬ 
ever manner, shall be paid by it in due season; and that 
neither the United States nor any state shall pay the debts 
incurred in aid of the Rebellion, or pay any claim arising 
out of the loss or emancipation of any slave. 

-‘This section, however, so far as any practical benefit 
being derived therefrom, is nil; for the national govern¬ 
ment in any event would have had to pay its debt if it 
wished to keep up its credit and retain the respect and 
confidence of the nations of the world; while who ever 
heard of a conquering power paying the obligations of the 
vanquished ? Hence, the only possible end attained by its 
insertion was to make ^^assurance doubly sure.” 

SECTION 5. 

POWER OF CONGRESS TO ENFORCE THIS ARTICLE. 

The Congress shall have power to enforce, by appropriate legislation, the 
provisions of this article. 

Congress has long since carried the ])rovisions of this 
Article into effect by appropriate legislation. But the in¬ 
sertion of this section was unnecessary, as Congress in 
any event would have had such power. 


[Amend. XIV] 


TIIK UNITED STATES. 


187 


ARTICLE XV. 


(FIFTEENTH AMENDMENT.) 


EDUA h S UFFRAGE. 

The right of citizens of the United States to vote shall not he denied or 
abridged by the United States, or by any state, on account of race, color, or 
previous condition of servitude. 

Congress shall have power to enforce this article by appropriate legislation. 

For fear that the inducements held out to the Southern 
states l)y section 2 of the next precedint^ Article to permit 
the blacks to exercise the privileg'e of suffrage upon the 
same footing as the whites might not prove sufficient to 
attain that end, this Article was proposed and adopted. 

Its effect is to prohibit the states, whom we have seen 
have the right to prescribe the qualifications for voting of 
all persons residing within their respective borders, from 
in any manner discriminating against the negroes, or for 
that matter against any other race, in respect to suffrage. 
But it does not prevent a state from at any time increas¬ 
ing or diminishing the qualifications required before it 
will permit any of its citizens or residents to exercise the 
])rivilege of suffrage. Thus, a state may provide that its 
residents otherwise qualified shall have a certain amount of 
property before they can vote; or that they must have a 
more or less stringent educational qualification; or that 
they shall have a greater or less age than twenty-one. A 
state can even permit its female residents having the other 
qualifications in common with the males to vote. And it 
it-may prescribe that insane persons, idiots and felons, 
though otherwise qualified, shall not be permitted to vote. 
But if by prescribing an educational, property or other 
qualification a state should deprive some of its male citi¬ 
zens over the age of twenty-one from voting, its represen- 

[Amend. XV] 


i88 


CIVIL GOVERNMENT OE 


tation in Congress would to that extent he diminished, as 
is provided in section 2 of the last Article. This would 
not be the case, however, if the privilege to vote was de¬ 
nied to women or to males under the age of twenty-one. 

Thus, by these last three Amendments was the last great 
blot on the fair name of liberty removed—in theory at least 
—and our national government raised to be the brightest 
beacon light of hope to future ages as they come. 


[Amend. XV] 


APPENDIX. 









THE 


DECLARATION OF INDEPENDENCE. 


IN.CONGRESS, JULY 4 , 1776. 


THE UNANIMOUS DECLARATION OF THE THIRTEEN 
UNITED STATES OF AMERICA. 

When, in the course of human events, it becomes necessary for 
one people to dissolve the political bands which have connected 
them with another, and to assume, among the powers of the earth 
the separate and^ equal station to which the laws of nature and of 
nature’s God entitle them, a decent respect to the opinions of man¬ 
kind requires that they should declare the causes which impel them 
to the separation. 

We hold these truths to be self-evident: that all men are cre¬ 
ated equal; that they are endowed, by their Creator, with certain 
unalienable rights; that among these are life, liberty, and the pur¬ 
suit of happiness. That to secure these rights, governments are in¬ 
stituted among men, deriving their just powers from the consent 
of the governed; that whenever any form of government becomes 
destructive of these ends, it is the right of the people to alter or to 
abolish it, and to institute a new government, laying its foundation 
on such principles and organizing its powers in such form as to 
them shall seem most likely to effect their safety and happiness. 
Prudence, indeed, will dictate that governments long established 
should not be changed for light and transient causes; and, accord¬ 
ingly, all experience hath shown that mankind are more disposed 
to suffer while evils are sufferable than to right themselves by abol¬ 
ishing the forms to which they are accustomed. But when a long 
train of abuses and usurpations, pursuing invariably the same ob¬ 
ject, evinces a design to reduce them under absolute despotism, it 
is their right, it is their duty to throw off such government, and to 
provide new guards for their future security. Such has been the 

191 




192 


DECLARATION OF INDEPENDENCE 


patient sufferance .of these colonies; and such is now the necessity 
which constrains them to alter their former systems of government. 
The history of the present king of Great Britain is a history of re¬ 
peated injuries and usurpations, all having in direct object the es¬ 
tablishment of an absolute tyranny over these states. To prove 
this, let facts be submitted to a candid world. 

He has refused his assent to laws the most wholesome and neces¬ 
sary for the public good. 

He has forbidden his governors to pass laws of immediate and 
pressing importance, unless suspended in their operation, till his 
assent should be obtained; and when so suspended, he has utterly 
neglected to attend to them. 

He has refused to pass other laws for the accommodation of 
large districts of people, unless those people would relinquish the 
right of representation in^the legislature—a right inestimable to 
them and formidable to tyrants only. 

He has called together legislative bodies at places unusual, un¬ 
comfortable and distant from the repository of their public records, 
for the sole purpose of fatiguing them into compliance with his 
measures. 

He has dissolved representative houses repeatedly, for opposing, 
with manly firmness, his invasions on the rights of the people. 

, He has refused for a long time after such dissolutions to cause 
others to be elected; whereby the legislative powers, incapable of 
annihilation, have returned to the people at large, for their exer¬ 
cise, the State remaining, in the meantime, exposed to all the dan¬ 
gers of invasion from without and convulsions within. 

He has endeavored to prevent the population of these states; for 
that purpose obstructing the laws for naturalization of foreigners; 
refusing to pass others to encourage their migration hither, and 
raising the conditions of new appropriations of lands. 

He has obstructed the administration of justice, by refusing his 
assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone for the tenure 
of their ofirces, and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms 
of officers to harass our people and eat out their substance. 

He has kept among us, in times of peace, standing armies, with¬ 
out the consent of our legislatures. 

He has affected to render the military independent of, and su¬ 
perior to, the civil power. 

He has ccmkined with others to subject us to a jurisdiction for¬ 
eign to our constitution, and unacknowledged by our laws; giving 
his assent to their acts of pretended legislation: 

For quartering large bodies of armed troops among us: 

For protecting them, *\)y a mock trial, from punishment for any 
murders which they should commit on the inhabitants of these 
states: 


O? THE UNITED STATES. 


193 


For cutting off our trade with all parts of the world: 

For imposing taxes on us without our consent: 

For depriving us, in many cases, of the benefits of trial by jury: 

For transporting us beyond seas to be tried for pretended of¬ 
fenses: 

For abolishing the free system of English laws in a neighboring 
province, establishing therein an arbitrary government, and enlarg¬ 
ing its boundaries, so as to render it at once an example and fit in¬ 
strument for introducing the same absolute rule into these colonies: 

For taking away our charters, abolishing our most valuable laws, 
and altering, fundamentally, the forms of our government: 

For suspending our own legislatures, and declaring themselves 
invested with power to legislate for us in all cases whatsoever. 

He has abdicated government here by declaring us out of his 
protection, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our towns, 
and destroyed the lives of our people. 

He is at this time transporting large armies of foreign merce¬ 
naries to complete the works of death, desolation, and tyranny,- al¬ 
ready begun with circumstances of cruelty and perfidy scarcely par¬ 
alleled in the most barbarous ages, and totally unworthy the head 
of a civilized nation. 

He has constrained our fellow citizens, taken captive on the high 
seas, to bear arms against their country, to become the executioners 
of their friends and brethren, or to fall themselves by their hands. 

He has excited domestic insurrections among us, and has en¬ 
deavored to bring on the inhabitants of our frontiers the merciless 
Indian savages, whose known rule of warfare is an undistinguished 
destruction of all ages, sexes and conditions. 

In every stage of these oppressions we have petitioned for re¬ 
dress in the most humble terms; our repeated petitions have been 
answered only by repeated injury. A prince, whose character is 
thus marked by every act which may define a tyrant, is unfit to be 
the ruler of a free people. 

Nor have we been wanting in attentions to our British brethren. 
We have warned them, from time to time, of attempts by their 
legislature to extend an unwarrantable jurisdiction oyer us. We 
have reminded them of the circumstances of our emigration and 
settlement here. We have appealed to their native justice and mag¬ 
nanimity, and we have conjured them by the ties of our cornmon 
kindred to disavow these usurpations, which would inevitably inter¬ 
rupt our connections and correspondence. They, too, have, been 
deaf to the voice of justice and of consanguinity. We must, there¬ 
fore, acquiesce in the necessity which denounces our separation, 
and hold them, as we hold the rest of mankind—enemies in war, in 
peace, friends. 

We, therefore, the representatives of the United States oe 
.America, in general congress assembled, appealing to the Supreme 


13 


194 


DECLARATION OF INDEPENDENCE 


Judge of the v/orld for the rectitude of our intentions, do, in the 
name and by the authority of the good people of these colonies, 
solemnly publish and declare, That these United Colonies are, and 
cf right ought to be, Frei: and Indt5pendent States; that they are 
absolved from all allegiance to the British crown, and all political 
connection between them and the State of Great Britain is, and 
ought to be, totally dissolved; and that, as Free and Independent 
States, they have full power to levy war, conclude peace, contract 
alliances, establish commerce, and to do all other acts and things 
which Independent States may of right do. And for the support 
of this Declaration, with a firm reliance on the protection of Divine 
Providence, we mutually pledge to each other our lives, our for¬ 
tunes, and our sacred honor. 


JOHN HANCOCK. 


BEECHER'S 


CONSTITUTION 

AND 

CIVIL GOVERNMENT 

of 


MONTANA. 




BY 

WM, L BEECHER, LL. D. 

A MEMBER OF THE MONTANA BAR. 


Wm. J. Beecher, Publisher, 
Tivingston, Mont. 

1901. 


Entered according to the Act of Congress in the 5'ear 1901, by 
\VM. J. BEECHER, 

in the office of the Eibrarian of Congress, at Washington. 


PREFACE. 


In introducing this work to the Montana public we shall 
content ourselves by saying that it has been our constant 
aim in the preparation of the same to give in as plain and 
concise language as possible, without repetition, an elucida¬ 
tion upon the fundamental rules relative to the Civil Govern¬ 
ment of ‘'Our Mountain Home.’’ Further than this we 
have not gone, nor could we do so without over-stepping 
the limits of a work of this nature. For that reason, this 
volume will be found of very little value as a work of ref¬ 
erence to the legal profession and others, for it makes no 
pretension of delving down deep into and unraveling the 
intricate and knotty problems of the law. Instead, it is 
designed simply to give the Montana public, and especially 
her coming men and women, a general and correct idea of 
how and by what means she is civilly governed. Firmly do 
we believe that no free people can long retain their liberty 
and independence, or at least retain them undefiled, unless 
they are at all times familiar with the institutions of their 
state and nation, for by being in such a position only can 
they exercise intelligently and beneficently the privilege of 
declaring by ballot the freeman’s sovereign will. Therefore, 
if through the agency of this book we shall be of any aid 
to the people of Montana in this respect, we will feel that 
our efforts have not been in vain. 

W. J. B. 

Livingston, Montana, April 15th, 1901. 



CONTENTS. 


Page. 

Preliminary . ^ 

Enacting Cl^inse, or Preamble. 5 

ARTICLE I.—Boundaries. 7 

ARTICLE II.—Military Reservations. 8 

ARTICLE III.—Bill of Rights. 9 

Seciton I.—Political Power, in Whom Vested. lo 

Section 2.—Right of Self-government. n 

Section 3.—Rights of Persons. 12 

Section 4.—Religions Freedom. 13 

Section 5.—Freedom of SufIrage. 15 

Section 6.—Guaranty of a Fair and Impartial Trial... 16 

Section 7.—Security of Persons and Property. 17 

* Section 8 .—Mode of Prosecuting Criminal Offenses... 19 

Section 9.—Treason and Attainder. 22 

Section 10.—Freedom of Speech. 23 

Section ii.—E x Post Facto Laws, etc. 25 

Section 12.—Imprisonment for Debt. 26 

Section 13.—Right to Bear Arms. 27 

Section 14.—Property Taken Must Be Compensated for. 28 

Section 15.—Water Rights, etc. 29 

Section 16.—Rights of Accused Persons. 31 

Section 17.—Imprisonment of Prosecuting Witness.... 33 

Section 18.—Additional Rights of Accused Persons.... 34 

Section 19.—Bailable Offenses. 35 

Section 20.—Excessive Bail, etc. 35 

Section 21.—Writ of Habeas Corpus. 36 

Section 22.—IMilitary Subordination. 37 

Section 23.—Right of Jury Trial. 38 

Section 24.—Foundation of Criminal Laws. 40 

Section 25.—Rights of Aliens, etc. 40 

Section 26.—Freedom of Assembly and Petition. 41 

Section 27.—Rights of Persons (continued). 42 

Section 28.—Slavery . 43 

Section 29.—Rule of Construction. 43 

iv 
































CONTENTS. 


V 


Page. 

Section 30.—Rights Reserved by the People. 44 

Section 31.—Suppression of Domestic Violence. 44 

ARTICLE IV.—Distribution of Powers. 45 

ARTICLE V.—Legislative Department. 45 

Section j.—V estment of Legislative Power. 45 

Section 2.—Term of Office of Senators and Repre¬ 
sentatives . 46 

Section 3.—Qualifications of Assemblymen. 47 

Section 4.—Number of Members. 47 

Section 5.—Compensation of Members. 49 

Section 6 .—Sessions of Legislative Assembly. 50 

Section 7.—Restrictions on Members. 5^ 

Section 8.—Increase of Salary. 51 

Section 9.—Officers and Elections. 52 

Section 10.—Quorum . 53 

Section ii.—R ules of Legislative Assembly. 54 

Section 12.—Records of Proceedings. 56 

Section 13.—Publicity of Proceedings. 57 

Section 14.—Adjournment . 58 

Section 15.—Privileges of Legislators. 59 

Section j 6.—Power of Impeachment. 60 

Section 17.—Who May Be Impeached. 61 

Section 18.—Removal of Other Officers. 62 

Section 19.—How Laws are Enacted. 63 

Section 20.—Style of All Laws. 64 

Section 21.—Time of Introducing Bills. 65 

Section 22. — Printing of Bills, etc .r.. 65 

Section 23.—What Titles of Bills to Contain. 66 

Section 24.—Majority Vote. 67 

Section 25.--Manner of Amendment. 67 

Section 26.—Passage of Special Laws Forbidden. 68 

Section 27.—Duties of Presiding Officer. 69 

Section 28.—Duties, etc., of Other Officers. 70 

Section 29.—Extra Compensation of Officers Not Al¬ 
lowed . 70 

Section 30.—State Printing, etc. 71 

Section 31.—Salaries Cannot Be Increased or Dimin¬ 
ished . 72 

Section 32.—Where Revenue Bills Originate. 72 

Section 33.—x\ppropriation Bills. 73 







































VI 


CONTENTS. 


Page. 

Section 34.—Manner of Paying Public Money. 74 

Section 35.—Appropriations to Churches, etc., Forbid¬ 
den . 74 

Section 36.—Delegation of Powers. 75 

Section 37.—Investment of Trust Funds. 75 

Section 38.—Government Aid to Private Enterprises 

Forbidden . 76 

Section 39.—Extinguishment of Obligations Owing to 

the State. 77 

Section 40.—Concurrent Resolutions. 78 

Section 41.—Bribery by Legislators. 79 

Section 42.--Bribery by Others. 80 

Section 43.—Solicitation of Bribery by Officers and 

Others . 80 

Section 44.—Interest of Members in Proposed Legisla¬ 
tion . 81 

Section 45.—Vacancies . 81 

ARTICLE VI.—Apportionment and Representation. 82 

i Section i.—R epresentation in Congress. 82 

Section 2.^—Apportionment of State Representatives... 83 

Section 3.—Representative Districts. 84 

Section 4.—Senatorial Districts. 85 

Sections 5 and 6.—Number and Formation of Districts. 85 

ARTICLE VII.—Executive Department. 86 

Section i.—I n What Executive Department Consists.. 86 

Section 2.—Mode of Electing Executive Officers. 89 

Section 3.—Eligibility of Executive Officers. 91 

Section 4.—Salaries of Executive Officers. 92 

Section 5.—Executive Power Vested in Governor. 93 

Section 6.—Commander-in-Chief, Governor Is. 94 

Section 7.—Appointive Power of Governor. 94 

Section 8.—State Examiner. 96 

Section 9.—Pardoning Power. 97 

Section 10.—Duties and Sole Powers of Governor. 99 

Section ii.—P ower to Call Special Session. 106 

Section 12.— How Bills Become Laws. loi 

Section 13.—Veto of Appropriation Items.-. 103 

Section 14.—Vacancies in Office of Governor. 104 

Section 15.—Duties of Lieutenant Governor. 105 

Section 16.—Vacancies in office of both Governor and 

Lieutenant Governor. 106 


































CONTENTS. vii 

Page. 

Section 17—The Great Seal. 106 

Section 18.—Grants, etc., How Authenticated. 107 

Section 19.—Accounts of Executive Officers. 108 

Section 20.—State Board of Examiners, etc. 108 

ARTICLE VIII.—Judicial Department. no 

Section i.—J udicial Power, In What Vested. no 

Section 2.—Jurisdiction of Supreme Court. in 

Section 3.—Powers of Supreme Court. in 

Section 4.—Terms of Supreme Court. 115 

Section 5.—Organization of Supreme Court. 116 

Section 6.—Election of Justices. • 117 

Section 7.—Terms of Justices... 118 

Section 8.—Time of Election of Justices. 118 

Section 9.—Clerk of Supreme Court. 119 

Section 10.—Qualifications of Justices. 120 

Section ii.—J urisdiction of District Courts. 120 

Sections 12 and 13.—^Judicial Districts. 121 

Section 14.—‘Number of District Judges. 122 

Section 15.—Writs of Error. 123 

Section 16.—Qualifications of Judges. 124 

Section 17.—Terms of District Courts. 124 

Section 18.—Clerks of District Courts. 125 

, Section 19.—County Attorneys. 125 

Section 20.—Justices of the Peace. 126 

Section 21.—Jurisdiction of Justices’ Courts. 128 

Section 22.—Sessions of Justices’ Courts... 129 

Section 23.—Appeals from Justices’ Courts. 129 

Section 24.—Police or Municipal Courts. 130 

Section 25.—Courts of Record. 131 

Section 26.—Uniformity of Law Regulating Courts.... 131 

Section 27.—Title of Processes. 132 

Section 28.—Civil Actions. 132 

Section 29.—Salaries of Justices and Judges. 133 

Section 30.—No Allowance of Additional Fees. 134 

Section 31.—Practice Law, Judicial Officers Cannot.... 134 
Section 32.—Decisions Supreme Court, Publication of. 135 

Section 33.—Residence of Judges and Others. 135 

Section 34.—Vacancies . 136 

Section 35.—Can Hold but One Office, Judicial Officer. 136 

Section 36.—Judge Pro Tempore. 137 

Section 37.—Absence of Judicial Officers from State... 138 






































CONTENTS. 


viii 

Page. 

ARTICLE IX.—Right of Suffrage and Qualifications to 

Hold Office. 138 

Section t.— Manner of Voting. 138 

Section 2.—Qualifications of Voters. 139 

Section 3.—Gaining or Losing Residence. 140 

Section 4.—Voters Privileged from Arrest. 141 

Section 5.—Performance of Military Duty on Election 

Day . 142 

Section 6.—Non-residents . 142 

Section 7.—Qualifications for Office. 142 

Section 8.—Persons Non Compos Mentis. 143 

Section 9.—Registration Laws. 143 

Section io.-—E ligibility of Women to Vote, etc. 144 

Section ii.—P fiigibility for Office. 144 

Section 12.--Questions of Taxation. 146 

Section 13.—Plurality Elects. 146 

ARTICLE X.—State Institutions and Bublic Buildings 147 

ARTICLE XL—Education..’. 148 

ARTICLE XII.—Revenue and Taxation. 152 

ARTICLE XIIL—Public Indebtedness. 154 

article ■ XIV.—Military Affairs. 156 

ARTICLE XV.—Private Corporations. 157 

ARTICLE XVI.—Public Corporations and Officers. 159 

ARTICLE XVII.—Public Lands. 162 

ARTICLE XVIII.—Labor . 163 

ARTICLE XIX.—Miscellaneous Subjects and Future 

Amendments. 164 

Section i.—O ath of Office. 164 

Section 2.—Lotteries . 165 

Sections 3 and 4.—Homesteads, Exemptions, etc. 165 

Section 5.—Perpetuities Forbidden.’ 166 

Section 6.—Location of County Offices. 167 

Section 7.—Disposition of Public Lands. 167 

Section 8.—Constitutional Convention. 168 

Section 9.—Amendments, How Made. 171 

ARTICLE XX.—Change from Territory to State. 173 


































BEECHER’S 


CONSTITUTION “CIVIL GOVERNMENT 


OF 

MONTANA. 


preliminary. 

In beginning the study of the science of state government 
three questions naturally present themselves for our con¬ 
sideration. The first of these is, What constitutes a state? 
The second is, How are states constituted? And the third 
is, Why are states constituted? 

To the first question we must answer that the term state 
as herein used means one of those political communities 
of free citizens, existing and occupying a defined territory 
within and forming a part of the American Union, and 
organized under a government sanctioned and limited by 
a written Constitution, which government was established 
by the consent of the governed. In other words, the pri¬ 
mary idea is that the people residing within a certain well- 
defined local self-governing political body called a state, 
which state forms a distinct part of that greater political 
body called the United States, constitute the same. This is. 
the great fundamental principle upon which our institu¬ 
tions are established—that the people constitute the state. 



2 


CIVIL GOVERNMENT 


With US the people (meaning a majority of those having 
the right to vote) are the sovereigns. They are the 
sources of all authority, all law. They are the pro¬ 
mulgators of all new ideas relative to their own self-govern¬ 
ment, and the destroyers of those grown useless, or worse 
than useless, under the influence, of the ruthless hand of 
time. They are at once the legislators, the executors and 
the judges. They are the courts of last resort. From the 
secret depths of their inmost bosoms well up the hidden 
sources of the great fount of justice, of order and of law. 
And so it follows that the people of that broad and rich 
domain called Montana are the constituters or creators 
thereof. They were the people who framed the Constitution 
of Montana, and organized under its proper limitations the 
state government. under which we live. And it is of this 
Constitution and the government thus organized that we 
are now about to study. 

To the second question we must reply that states (mean¬ 
ing self-governing units of the United States) are consti¬ 
tuted in a variety of ways, th^re being no specific mode 
of procedure prescribed to attain that end, nor could there 
be one that would suit all circumstances. For instance, 
the original thirteen states were born in the blood of revolu¬ 
tion, and their baptismal rites were administered at the 
cannon’s mouth, they having declared themselves “free and 
independent states,” and then afterwards first formed them¬ 
selves into a loose confederation and then into a strong 
constitutional federation. Since the adoption of the Con¬ 
stitution, however. Congress is the only branch of the 
national government that can authorize the creation of new 
states for the purpose of enabling them to be admitted to 
the Union, but even it has had to adopt different methods 
at different times, as dictated by the circumstances of the 
hour. But the most common mode of procedure pursued. 


OJ' MONTANA. 


3 


and the one followed in the admission of our own Queen 
of the Mountains, is as follows: 

The people of an organized territory, having for certain 
reasons concluded that they wished to have the same ad¬ 
mitted to the Union as a state, send a petition to Congress, 
through their delegate having a seat therein, praying that 
that august body pass an act authorizing them to form a 
state government. If Congress is of the opinion that such 
territory has a number of inhabitants sufficient to warrant 
their being permitted to form a state government and apply 
for admission into the sisterhood of states, it grants the 
petition and passes what is called an “Enabling Act.” This 
act, among other things, provides for the calling of a con¬ 
stitutional convention in such territory, the duty of which 
is to frame a Constitution, republican in form, and submit 
the same to the people thereof for adoption or rejection. 
If it is adopted, duly authenticated copies of the Constitu¬ 
tion are sent to Congress and to the President. These 
copies are carefully examined, and if it appears satisfactorily 
to Congress from them, or otherwise, that the Constitution 
framed is in conformity with our institutions, the new 
state is straightway admitted into the fold. But if either 
Congress or the people of the territory reject the Constitu¬ 
tion as framed by the constitutional convention, then a new 
convention must be called and a new Constitution proposed. 

To the third and last question numerous and various 
answers may also be given, but the chief reason we have 
an “indestructible Union formed of indestructible states,” 
and not simply one central government having all powers 
as are now exercised by both our state and national govern¬ 
ments combined, is because by this means only could one 
of the main theories of our government, to-wit, the decen- 
Iralization of power, be carried out the most efiectively. 
That is, the combined experience of all nations which have 
existed since first old time began convinced the fathers 


4 


CIVIL GOVERNMENT 


that the constant and natural tendency of all governments 
to centralize was an extremely dangerous one to the per¬ 
petuity of free institutions, and hence should be guarded 
against in the general government they were organizing 
to the greatest possible extent; for as the general govern¬ 
ment of any nation grows stronger and stronger by centraliz¬ 
ing in itself the power originally reposed in the hands of the 
people, to that extent are the inherent rights and liberties of 
the people taken away. A fitting example of this tendency, 
and of its result when no efficient means of checking it is 
provided for, can be gleaned from the history of Rome, that 
at one time proud mistress of the world, between the date 
of the organization of the Republic and that of the estab¬ 
lishment of the Empire under the second Caesar. When 
the Roman Republic was first organized the great mistake 
made by its founders was that they failed to provide a 
^ means for the decentralization of power, but permitted 
the entire nation to be governed directly by one central 
government, whicli for centuries had its capital in the City 
of the Catacombs and of the Popes, and hence as time flew 
on into eternity the central government gradually, and 
perhaps almost imperceptibly, but nevertheless surely, 
usurped the power originally reposed in the hands of the 
people, until at last Augustus Csesar felt able to proclaim 
himself emperor of an almost unlimited monarchy, instead 
of the head of a democratic republic. That such should not 
be the ultimate fate of the great Western Republic, the 
founders thereof determined that its general government 
should have only such powers as might be necessary to 
insure to it perpetual existence, and that all other powers 
should be reserved to the people, except such as they have 
forbidden themselves to exercise, to be set in action by 
them through the agency of state governments framed for 
that purpose. It will be at once noticed that the effect of 
this is to make these state governments extremely watch- 


OI^ MONTANA. 


5 


fill and jealous of any encroachment on their power by the 
general government, and hence guard against the central¬ 
ization of power. As long as our states exist, just so long 
will it be impossible for our national government to assume 
any other form than that of a representative republic,—at 
least so far as the states themselves are concerned. 

Another reason v/hy we have states is because of the 
great diversity of industries common to different parts of 
the country, and the different methods of carrying them on, 
each of which requires laws and regulations not at all sim- 
^ilar. Thus, the Montana laws and regulations in regard 
to water rights would be absolutely detrimental if enforced 
in Wisconsin or in New York, and vice versa. Again, the 
laws and regulations of Montana relative to mines and 
mining, because of climatic or topographic differences, 
might be entirely inapplicable to any other part of the coun¬ 
try. And so on indefinitely. 

Still another reason why we have states is because there 
were such organizations at the time this government was 
established, the original thirteen states having been in ex¬ 
istence as independent nations prior to the formation of our 
present constitutional government. 

Having learned what constitutes a state, and how and 
why they are constituted, we will now take up the study 
of the Constitution of Montana in the order in which it was 
framed. 


ENACTING CLAUSE OR PREAMBLE. 

We, the people of Montana, grateful to Almighty God for the blessings of 
liberty, in order to secure the advantages of a state government, do, in accord¬ 
ance with the provisions of the Enabling Act of Congress, approved the 
twenty-second of February, A. D. 1889, ordain and establish this Constitution. 

The chief importance attached to tlie enacting clause or 
preamble lies in this, that it furnishes a valuable aid in in¬ 
terpreting the provisions of the Constitution, for it places 
beyond dispute the questions, “From whence is the source 


6 


civil. GOVERNMENT 


of power?” and, “For the attainment of what object or ob¬ 
jects was the Constitution framed and ratified?” 

The first question is answered by the declaration, in un¬ 
mistakable terms, that “we, the people,” meaning the people 
of the State of Montana, for the attainment of certain ends, 
“do ordain and establish this Constitution.” Thus, the 
very first words of the Constitution show that th.e form of 
government in this state is republican—that is, one in 
which the people are the sources of power, and not a 
monarch or a few aristocrats or nobles. And in order that 
there might be no mistake who these people are, the pre¬ 
amble states that they are the people of Montana. 

The second question is also answered in unmistakable 
terms by the declaration that this Constitution was or¬ 
dained and established in order to secure to the people of 
Montana “the advantages of a state government.” But 
this gives rise to another question, “What are these ad¬ 
vantages?” The advantages of statehood, so far as the 
people of Montana are directly concerned, are many, 
among the most important of which are the following: 
First, the guaranty by the United States of a republican 
form of government; second, the right to have a voice in 
the councils of the nation; and, third, the very important 
right of local self-government. 

It will be noticed that the preamble very carefully re¬ 
frains from declaring that one of the objects for which the 
state of Montana was formed was to secure independence. 
This is because when the United States Constitution was 
adopted the states gave up to the United States all their 
inherent power as independent nations, reserving only to 
themselves such powers as were necessary for local self- 
government, and all states which have come into the Union 
since that time have had to do likewise. Hence, the people 
of the State of Montana, as members of such political body, 
can exercise no power which naturally belongs to an inde- 


OI^ MONTANA. 


7 


pendent sovereignty, such as making treaties with foreign 
nations or with other states, etc., but as members of that 
greater political unit called the United States they can do 
these things. 


ARTICLE I. 

BOUNDARIES. 

The boundaries of the State of Montana shall be as follows, to-wit: Be¬ 
ginning at a point formed by the intersection of the twenty-seventh degree of 
longitude west from Washington with the forty-fifth degree of north latitude; 
thence due west on the forty-fifth degree of latitude to a point formed by its 
intersection with the thirty-fourth degree of longitude west from Washington; 
thence due south along the thirty-fourth degree of longitude, to a point formed 
by its intersection with the crest of the Rocky Mountains; thence following 
the crest of the Rocky Mountains northward to its intersection with the 
B.ittcr Root Mountains; thence northward along the crest of the Bitter Root 
Mountains, to its intersection with the thirty-ninth degree of longitude west 
from Washington; thence along the thirty-ninth degree of longitude north¬ 
ward to the boundary line of the British Possessions; thence eastward along 
that boundary line to the twenty-seventh degree of longitude west from Wash¬ 
ington; thence southward along the twenty-seventh degree of longitude to 
the place of beginning. 


The boundaries of the State of Montana, as defined 
by this Article, are the same as when the state was 
originally admitted into the Union, on the 8th day of 
November, 1889, they never having since been changed, 
nor are* they ever likely to be. Should it be advis¬ 
able to at any time change the boundaries of the state, 
however, this can be done only with the consent of onr 
own legislature and the concurrent consent of Congress, 
together with that of the legislatures of all other states 
in any manner concerned, if there are any such. Thus, 
the legislature of Montana cannot change her bound¬ 
aries unless the consent of Congress is first obtained, and 
not even then if any of the neighboring states are affected, 
14 [i] 



8 CIVIL GOVERNMENT 

or likely to be affected, by the proposed change, unless 
their legislatures also consent thereto. And the reverse 
also holds good, for Congress cannot change the bound¬ 
aries of a state without the consent of its legislature and 
the consent of the legislatures of all other states concerned. 
Should at any time the boundaries of Montana be changed, 
however, such change would in effect amend this Article 
to the extent thereof, and that \yithout the necessity of a 
formal amendment being made in any of the ways pre¬ 
scribed by Article XIX., Sections 8 and 9, of the Montana 
Constitution, relative to amendments. 

The reason for defining particularly the boundaries of 
Montana was to specifically designate the area over which 
ishe should have exclusive jurisdiction so far as the self- 
government of her people is concerned, and thus make it 
practically impossible for her to get into quarrels or 
wrangles with her sisters over questions of disputed au¬ 
thority. 


ARTICLE II. 

MTIJTARY RESERVATIONS. 

Authority is hereby granted to and acknowledged in the United States to 
exercise exclusive legislation as provided by the Constitution of the United 
States, over the military reservations of Fort Assinaboine, Fort Custer, Fort 
Keogh, Fort Maginnis, Fort Missoula and Fort Shaw', as now established by 
law, so long as such places remain military reservations, to the same extent 
and with the same effect as if said reservations had been purchased by the 
United States by consent of the legislative assembly of the State of Montana; 
and the legislative assembly is authorized and directed to enact any law neces¬ 
sary or proper to give effect to this article. 

Provided, that there be and hereby is reserved to the state the right to 
serve all legal process of the state, both civil and criminal, upon persons and 
property found within any of said reservations in all cases where the United 
States has not exclusive jurisdiction. 


[2] 



OP' MONTANA. 


9 


This Article is of very little importance so far as the 
people of this state are concerned, as it simply guarantees 
to the general government exclusive jurisdiction over cer¬ 
tain forts and their accompanying military reserves which 
the United States had established in Montana territory for 
the purpose of keeping the Indians under proper restraint, 
and which they still desired to maintain after the territory 
was admitted to statehood. The reason for this Article 
being inserted in the Constitution was because the Con- 
'^ress of the United States made this one of the conditions 
which the State of Montana had to comply with before it 
would permit her to be admitted into the Union. 

To the guaranty of exclusive jurisdiction in the United 
States over all military reservations situated within the 
boundaries of the State of Montana, however, there is a 
very important exception in this, that the state reserves 
to itself the right to serve all writs, orders and other pro¬ 
cess issuing out of the courts of this state in any action, 
whether civil or criminal, over which they have jurisdic¬ 
tion. Had it not been for this these reservations would 
have become the refuge of criminals fleeing from the strong 
arm of justice, as well as the refuge of debtors whose 
object is to hinder, delay or defraud their creditors out of 
what justly belongs to them. For these reasons, the wis¬ 
dom of this exception becomes doubly apparent. 


ARTICLE III. 

A DECT,ARATION OF RIGHTS OF THE PEOPLE OF THE STATE OF 
MONTANA. 

This Declaration or Bill of Rights of the people of the 
State of Montana is in many respects similar to the United 
States Bill of Rights, except that it is very much more 
comprehensive, and instead of prohibiting the government 

[3] 



10 


civiiv gove:rnme:nt 


of. the United States from doing certain things, as is the 
case with the national Bill of Rights, this one declares 
specifically what laws the people of Montana shall not be 
allowed to pass through their Legislative Assembly. 

In other words, the people of Montana, in whom reposes 
the sovereign power of their own local self-government, 
having learned from the bitter experience of the ages that 
even a free people, endowed with the God-given right to 
govern themselves, might in moments of anger, of prejudice 
or of haste enact certain laws the effect of which would be 
extremely evil and tyrannous on at least a minority of 
them, and perhaps a majority, determined to build up a 
safe-guard against the enactment of the same by declaring 
by means of the Declaration or Bill of Rights that their 
Legislative Assembly shall not be permitted to pass them. 
All other laws, however, that the Montana Legislative As¬ 
sembly is not prohibited from passing by the Bill of Rights 
or by other provisions of this Constitution, can be enacted 
by it. 


SECTION I. 

ALL POLITICAL POWER VESTED IN THE PEOPLE. 

All political power is vested in and derived from the people; all govern¬ 
ment of right originates with the people, is founded upon their will only and 
is instituted solely for the good of the whole. 


The effect of this section is to declare in terms unmis¬ 
takable from whence is all political power in Montana 
derived and in whom it is vested, and therefrom lay down 
a specific rule for the construction of this Constitution. 
But it would seem that the same end was attained by the 
declaration in the preamble that ‘We, the people * * * 

ordain and establish this Constitution,’’ and hence its re¬ 
iteration by means of this section was entirely unnecessary. 

[3-i] 


OF MONTANA. 


I I 

We presume, however, that the reason for its insertion 
was to “make assurance doubly sure.” 

SECTION 2. 

lUGHT OF THE PECU'LE TO ALTER OE ABOLTSTT TIIEIR CON¬ 
STITUTION OR FORM OF GOVERNMENT. 

The people of the state have the sole and exclusive right of governing 
themselves, as a free, sovereign and independent state, and to alter and abolish 
their Constitution and form of government, whenever they may deem it neces¬ 
sary to their safety and happiness, provided that such change be not repugnant 
to the Constitution of the United States. 

,/rhe provision that the people of Montana have the right 
to govern themselves as a free, sovereign and independent 
state is misleading, as it does not mean what it seems to 
say. In fact, the people of Montana have no such right, 
for in organizing themselves under a ^ate government 
and being admitted as such into the Union, they gave up 
to the United States their state freedom, sovereignty anfl 
independence. Therefore, the only meaning that it can 
have is simply that the people of Montana retain to them¬ 
selves the right of local self-government. True, the states 
in their relations with each other are practically foreign 
and independent sovereignties, except ^as limited by the 
national Constitution, yet in their relations with the United 
States they are regarded as domestic and dependent. This 
is too well settled to admit of dispute. 

The second provision, that th.e people shall have the 
right to alter or .abolish their Constitution and form of 
government, whenever their safety or happiness may re- 
(juire such a course, was entirely unnecessary, for the right 
to at any time change, amend or abolish their Constitu¬ 
tion or form of government is inherent in them, so long 
as the Constitution or form of government as changed or 
amended does not conflict with the Constitution, laws and 
treaties of the United States. That is, the people of Mon- 

[3:2] 


12 


CIVIL GOVERNMENT 


tana and of every other state have the inherent right to 
at any time change or amend their constitution or form 
of government, and even create a new one to take the 
place of the old, if the Constitution or form of government 
thus changed, amended or created is republican in form 
and acknowledges the sovereignty of the United States 
Constitution and government. The people of Montana can¬ 
not if they would, therefore, change their form of govern¬ 
ment to such an extent as to make it a monarchy or an 
aristocracy. For that reason, the only possible end at¬ 
tained by the insertion of this provision is to place beyond 
dispute the question of whether or not the people of this 
state have the right to change or amend their Constitution 
or form of government, it being understood that the same 
shall be still republican in form after this is done. 

SECTION 3. 

THE RIGHTS OF PERSONS. 


All persons are born equally free and have certain natural, essential and in¬ 
alienable rights, among which may be reckoned the right of enjoying and 
defending their lives and liberties, of acquiring, possessing and protecting 
property, and of seeking and obtaining their happiness in all lawful ways. 


This section was inserted to emphasize the fact that all 

men are born free and equal, and have certain inherent 

rights, and that in Montana at least there shall be no law 

passed the effect of which is to discriminate against a cer¬ 

tain class or nationality residing within her borders, or 
against the citizens of other states or the citizens or sub¬ 
jects of foreign nations. But this does not mean that all 
men, in order that they might be equally free shall have 
the right to vote, for equal freedom does not consist in 
having a direct voice in the management of government. 
It means simply that all the people of Montana shall be 
ruled justly and impartially by a government of their own 
choice. If this were otherwise, then women and children 


MONTANA. 


3 


and felons and persons iion compos mentis might justly com¬ 
plain under this section that they were unjustly and wrong¬ 
fully discriminated against, because they cannot vote, while 
the truth of the matter is that to vote is not a right, but a 
privilege, which privilege only becomes a right after it is 
granted. 

Nor does it mean that everybody can do whatever he 
pleases, without regard for the rights of others. Far from 
it. If such were the case, then would liberty be license and 
freedom worse than the most abject tyranny. But it does 
mean that the people of Montana have certain inhe^rent 
rights which cannot or should not be taken away from them 
by law, in contradistinction to those rights of the people 
which are conventional. That is, they have certain rights 
which naturally, essentially and inalienably belong to them, 
and which should be secured to them in such a manner 
that the same could be taken away only by unjust and 
unlawful laws, for laws are not always just nor do they 
always stand the test of legality; also, they have certain 
other rights called conventional rights which are given by 
law or are the out-growth of custom, and hence can right¬ 
fully be taken away, for that which the law gives it 
can also take away. Among the latter is the right to vote, 
while among the former is the right of life, of liberty and 
of property. 

To protect the people in the full enjoyment of their in¬ 
herent rights is the great end or object of all government. 
A government that does not do this is scarcely worth hav¬ 
ing. 


SECTION 4- 

RELIGIOUS FREEDOM. 

The free exercise and enjoyment of religious profession and worship, with¬ 
out discrimination, shall forever hereafter be guaranteed, and no person shall 
be denied any civil or political right or privilege on account of his opinions 

[3:4] 


14 ' 


civiiv gove:rnment 


concerning religion, bnt the liberty of conscience hereby secured shall not be 
construed to dispense with oaths or affirmations, excuse acts of licentiousness, 
by bigamous or polygamous marriage, or otherwise, or justify practices in¬ 
consistent with the good order, peace or safety of the state, or opposed to 
the civil authority thereof, or of the United States. No person shall be re¬ 
quired to attend any place of worship or support any ministry, religious sect 
or denomination, against his consent; nor shall anj’ preference be given by 
law to any religious denomination or mode of worship. 

Three great objects are accomplished by this section, 
to-wit: Religious freedom, so far as this does not involve 
immoral practices; the prohibition that a religious test 
shall be required for the performance of any civil or polit¬ 
ical function; and the prohibition that any religious de¬ 
nomination shall be shown preference by this state. 

The reason for the first was to avoid the great evils flow¬ 
ing out of the attem])ts of European nations to control the 
consciences of their people in regard to religious profes¬ 
sion or worship. It was for the purpose of securing 
religious freedom and of escaping from the clutches of the 
established churches of England, o'f Holland and of 
France that most of our forefathers came to these then wild 
and desolate, though fertile, shores. And shall we, their 
children and the heirs to their bitter experiences, heed not 
the warning? We would be worse than ungrateful for the 
lessons of the past should we not do so, and we would 
be unfit and incapable to exercise the right of self-govern¬ 
ment. But the fact that we are given the freedom of 
religion does not mean that we will be protected in carry¬ 
ing into effect the practices of all religions, however vile, 
immoral or repugnant they may be, but simply that we 
may believe in such ])ractices and teach them. Thus, any 
person residing in this state may believe in the doctrines 
and practices of Mormonism and teach them, but let him 
try and put his belief into practice by entering into 
plural marriages and he will at once be arrested and 


OF MONTANA. 


5 


punished,—not because he believed in the doctrines of 
Mormonism or preached them, but because he violated the 
bigamy laws of the state. 

The reason why we have provided that no religious tests 
shall be required in this state for the performance of any 
political or civil function, such as holding office, giving 
evidence in courts of law, etc., is also because the priceless 
lessons of the ages have taught us that in all nations where 
religious tests have been required they have been fraught 
with evil results. 

And lastly, the reason why the provision that no laws 
shall be passed in this state giving any preference to any 
religious denomination or mode of worship, by appropriat- 
inrg money to its use and benefit out of the state treasury 
or otherwise, was inserted was to guard against impartiality 
in this respect, and therein forever put a damper on those 
twin evils, sectarian jealousy and discontent. 

SECTION 5. 

FEET^DOM OF SUFFRAGE. 

All elections shall be free and open, and no power, civil or military, shall 
at any time interfere to prevent the free exercise of the right of suffrage. 

The end attained by the adoption of this section is to 
guarantee to all those who are entitled to exercise the right 
of voting that they shall not be coerced by either the civil 
or military authority of this state, but shall be allowed to 
cast their ballots according to the dictates of their own 
consciences. 

The reason for it is too apparent to need comment, for 
in this manner only can the freedom and purity of our 
institutions be maintained. ^^Freedom is the freeman’s 
will.” 


[3:5] 


i6 


CIVIIv governme:nT 


SECTION 6. 

A FAIR AND IMPARTIAL TRIAL GUARANTEED. 

Courts of justice shall be open to every person, and a speedy remedy af¬ 
forded to every injury of person, property or character; and that right and 
justice shall be administered without sale, denial or delay. 

This section recognizes the truth of the maxim, that ^^all 
men should be equal before the law.” It is impossible 
to make all men equal socially or morally, but before the 
bar of justice they should, and by this section are made 
to be equal. Were it otherwise, the word freedom would 
be but a senseless name and a hollow mockery. And in 
addition to declaring that the courts of justice shall be 
open to no particular class or classes of persons, but to 
all persons, this section also provides that justice as admin¬ 
istered by such courts shall be dealt out without sale, denial 
or delay. The purpose of this is to guard against the base 
practice prevalent in many nations to pollute justice by sell- 
‘ ing the decisions of the courts to the highest bidder. True, 
this provision does not wholly protect the people fr6m the 
sale of judicial decisions, but it puts a very material check 
on the same, for it ever holds up before the eyes of those 
judges who are inclined to be dishonest and corrupt,— 
which we wish here to state is the exception, not the rule, 
—the gloomy and dismal spectre of a life behind prison 
bars. 

It is a favorite maxim of the common law that there shall 
be ^^no loss without an injury —damnum absque injuria.^’ But 
because a man suffers an injury as a direct result of a loss 
he has sustained, it does not necessarily follow that he has 
a remedy for such injury; that is, the right to prosecute 
an action in a court of law or equity for the purpose of 
reimbursing him for all loss he has sustained. But al- 


[3:6] 


OF MONTANA. 


7 


though it may not necessarily follow that one has a remedy 
for an injury he has sustained, yet common sense and 
justice dictate that he should have. Hence, that this de¬ 
sirable end might be attained, this section also provides 
not only that every person in this state shall be afforded 
a remedy for any loss he has sustained because of an injurv 
Co either his person, his property or his character, but goes 
further and declares that such remedy shall be speedy. 
Therefore, in this respect the rights of the people are amply 
secured. 

To us who by the grace of Heaven have never been 
forced to live under a government where the inherent rights 
of the people are not fully secured, it is almost wholly 
impossible to comprehend the value and importance of 
these and other provisions of a similar nature; but al¬ 
though we*cannot fully comprehend their importance, yet 
should we be extremely watchful and diligent in seeing 
to it that they are continually secured to us by wise and 
just laws. For it must be remembered that the most dan¬ 
gerous foe to a free, self-governing people is their own 
sloth, carelessness, and neglect in diligently superintending 
at all times the administration of the functions of govern¬ 
ment. 


SECTION 7. 

SECURITY OF PERSONS AND ^PROPERTY. 

The people shall be secure in their persons, papers, homes and effects, 
from unreasonable searches and seizures and no warrant to search any place 
or seize any person or thing, shall issue without describing the place to be 
searched, or the person or thing to be seized, nor without probable cause, 
supported by oath or affirmation, reduced to writing. 

It is very evident that this section was to a great extent 
copied from Article IV. of the United States Bill of Rights, 
and was undoubtedly framed to serve the same purpose— 

[3:7] 


18 civiiv gove:rnment 

the protection of the people from the re-enactment of one 
of the worst grievances against which our forefathers re¬ 
belled, to-wit, unreasonable searches and seizures. 

Under it no person can be arrested or searched, nor can 
his buildings be searched or his papers or efifects be 
searched or seized, except by an officer of the law having 
in his possession authority so to do. This authority is 
called a warrant, ancl in order to protect the people from 
unreasonable, vindictive or frivolous searches and seizures 
it is provided that such warrant shall be in writing and 
shall particularly describe the place to be searched or the 
person or things to be seized, and that it shall not be issued 
except upon probable cause, supported by the oath or 
affirmation of the person asking to have the same issued. 
If a warrant does not show all these things on its face it 
is irregular, and the officer serving it will be held liable in 
damages to the aggrieved party to the full extent of all 
injury he has sustained. If the warrant is regular on its 
face, however, no matter whether justly issued or not, the 
officer serving same incurs no liability thereby. 

There is, however, an exception to the right of the people 
to be secure in both person and property from unreason¬ 
able searches and seizures, in the case of those districts 
where because of invasion, insurrection or rebellion the 
functions of the writ of habeas corpus are suspended and 
martial law proclaimed. This is because at such times the 
safety of the people and of the state demand that a speedier 
and more summary mode of procedure be substituted for 
that in vogue in times of peace and quiet. But as soon 
as all danger of invasion, insurrection or rebellion in such 
district is past, the original status must at once be restored. 


[3: 7] 


OF' MONTANA. 


19 


SECTION 8. 

MANNER OF PROSECUTING CRIMINAL OFFENSES. 

Criminal offenses of which justices’ courts and municipal and other courts, 
inferior to the district courts, have jurisdiction, shall in all courts inferior to 
the district court be prosecuted by complaint. All criminal actions in the 
district court, except those on appeal, shall be prosecuted by informa¬ 
tion, after examination and commitment, by a magistrate, or after leave 
granted by the court, or shall be prosecuted by indictment without such ex¬ 
amination or commitment, or without leave of the court. A grand jury shall 
consist of seven persons, of whom five must concur to-find an indictment. 

A grand jury shall be drawn and summoned when the district judge shall 
in his discretion consider it necessary, and shall so order. 

The Constitution of Montana expressly provides for a 
supreme court, district courts and justices’ courts, and such 
other courts, inferior to the district courts, as the Legisla¬ 
tive Assembly shall from time to time see fit to establish 
(Article VIII., section i). Of these different courts, the 
• supreme court and the district courts only are courts of 
record; that is, they are judicial, organized tribunals hav¬ 
ing attributes and exercising functions independent of the 
person of the magistrate or judge designated to hold them, 
and proceeding according to the course of the common 
law. Justices^ courts and all other courts which the legis¬ 
lature of this state may establish are inferior courts; that 
is, courts which have but a limited jurisdiction only, and 
can exercise no functions independent of the person of the 
justice of the peace or magistrate generally designated to 
preside over them. Neither do they proceed according 
to the course of the common law. 

Criminal oftenses in these inferior courts, this ’section 
provides, must be prosecuted by complaint; that is, as the 
term is herein used, by a statement in writing, made by 
any person to such inferior court or magistrate, charging 
another person with being guilty of some designated of¬ 


fs: 8] 


20 


CIVIL govlrnmlnt 


fense, which statement must be sworn to or affirmed by 
the person making same. This was so provided in order 
to make the mode of procedure in the prosecution of the 
few petty offenses over which inferior courts are given 
jurisdiction (see Article VIII., section 21) as simple and 
as easily understood as possible, and at the same time as 
effective as the circumstances demand. 

In the district court, however, the mode of procedure in 
criminal actions is quite different; in fact, there are several 
different modes by whicli prosecutions may be carried on, 
as follows: All criminal offenses over which the inferior 
courts have jurisdiction, and which have been tried by 
them, may be prosecuted anew in the district court by tran¬ 
script on appeal from such inferior courts; all offenses, 
hoVever, over which the district court has original juris¬ 
diction (see Article VIII., Section ii,) must be prosecuted 
therein either by information after examination and com¬ 
mitment by a magistrate, or by information after leave has 
been granted in open court to file same, or by indictment 
preferred by a grand jury. An information after examina¬ 
tion and eommitment by a magistrate is an accrf^ation in 
writing, charging a person with a public offense, and pre¬ 
sented and signed by the county attorney and filed in the 
office of the clerk of the district court, after the person 
charged has been examined as to his probable guilt before, 
some magistrate and bound over on commitment to answer 
to the district court. An information after leave has been 
granted in open eourt to file same is a document similar to 
the above, except that it is filed by the county attorney 
with the clerk of the district court only after an order has 
been made by the court to that effect, instead of after ex¬ 
amination and commitment. An indictment is an accusation 
in writing, presented by a grand jury to the district court, 
charging a person with a public offense. A grand jury in 


13:8] 


OF MONTANA. 


21 


this state consists of a body of seven men regularly and 
impartially summoned by the sheriff of their own county, 
upon the order of the district judge, to inquire, under the 
direction of the court, into all public offenses committed 
and triable within such couijty, and return to the court all 
indictments found, the concurrence of five of their number 
being necessary to find an indictment. 

All offenses committed .against the United States must 
be tried upon an indictment or presentment of a) grand 
jury, but such is not the case in this state, though some or 
all of them may be. The usual method, however, by which 
criminal offenses are prosecuted is by information, either 
after examination and commitment or after leave granted 
by the court. This is because it is much the cheaper 
method, and as long as it is fairly and impartially con¬ 
ducted, is just as good as by indictment.. But should such 
not be the case, then the district judge in his discretion 
has the power to call a grand jury to straighten matters out. 

The object of all this is to prevent to as great an extent 
as possible evil-minded and evil-disposed persons from an¬ 
noying peaceable and innocent people with groundless or 
frivolous accusations. 

This section applies only to all criminal offenses com¬ 
mitted against the laws- of this state in time of peace. In 
time of war martial law takes the place of civil law in the 
district in which the war is actually being waged, and all 
offenses committed therein, whether by soldiers, sailors or 
civilians, are triable by court-martial. This is because at 
such time justice must be dealt out quickly and summarily, 
which would be impossible, though fairer, under the slow 
justice of peace. 


[3:8] 


22 


Civile gove:rnment 


X 





SECTION 9. 


TREASON AND BILLS OF ATTAINDER. 


Treason against the state shall consist only in levying war against it, or 
in adhering to its enemies, giving them aid or comfort; no person shall be 
convicted of treason except on the testimony of two witnesses fco the same 
overt act, or on his confession in open court; no person shall be attainted 
of treason or felony by the legislative assembly; no conviction shall work 
corruption of blood or forfeiture of estate; the estates of persons who may 
destroy their lives shall descend or vest as in cases of natural death. 


This section, among other things, lays down a specific 
definition of what treason against Montana shall consist in. 
Treason is the highest and most heinous civil crime that 
any man can commit under oiir laws, and its committer is 
always the object of the most bitter and unreasoning hatred 
' of the people. Therefore, in order to guard against the 
possibility of the legislature in times of great public unrest 
from passing a law declaring that the commission of certain 
acts shall constitute treason, which, in fact, because of the 
enormity of the offense, should not, but should constitute 
a crime of a lesser degree, it was thought best that treason 
should be specifically and for all time defined by the Con¬ 
stitution, thus taking the matter out of the hands of the 
legislature entirely. Under the above definition only open 
acts of war constitute treason. Hence, any person in this 
state may talk treason as much as he pleases, and even go 
so far as to conspire against the established government, 
yet unless he commits some overt act of hostility he is not 
guilty of treason. 

The provision in the foregoing section declaring that no 
person shall be convicted of treason except on the testi¬ 
mony of at least two witnesses to the same overt act, or 
on his confession in open court, was also inserted as a pre¬ 
cautionary measure to prevent the legislature from enact¬ 
ing, in times when public feeling runs high and is not 


[3:9] 


OF MONTANA. 


23 


always just, any law which might permit one to be con¬ 
victed of treason on a less amount of proof than is now 
required. This provision is in accordance with good com¬ 
mon sense and with sound, unprejudiced reason, for it is 
very plain that no person should be convicted of such a 
grave of¥ense on a less amount of proof than is herein re¬ 
quired. 

Neither shall the Legislative Assembly of Montana pass 
any law inflicting punishment without trial. The insertion 
of this provision, however, was entirely unnecessary, as the 
United States Constitution prohibits the states from pass¬ 
ing bills of attainder (Article I., Section 10). Neither shall 
any law be passed the effect of which would be to destroy 
the inheritable qualities of the blood of one convicted of 
treason or of some other felony, or which shall provide that 
after such conviction the property he might possess shall be 
forfeited to the state, or otherwise, and thus unjustly punish 
♦ the innocent descendants of such person into remote gen¬ 
erations. But, instead, the descendants of persons con¬ 
victed of treason or felony shall be permitted to inherit 
through and from them as in other cases, as shall also the 
descendants of all persons who may commit self-murder, 
or suicide. 


SECTION 10. 

FREEDOM OF SPEECH. 

No law shall be passed impairing the freedom of speech; every person 
shall be free to speak, write or publish whatever he will on any subject, being 
responsible for all abuse of that liberty; and that in all suits and prosecu¬ 
tions for libel, the .truth thereof may be given in evidence; and the jury, under 
the direction of the court, shall determine the law and the facts. 

The freedom of speech is one of the great bulwarks of 
American liberty, and is considered next in importance to 
the right to life and to liberty of person. It is one of the chief 
15 [3:10] 


24 


civiiv gove:rnment 


stumbling-blocks to tyranny and oppression. Should it at 
any time be taken away from the people, then would their 
liberties indeed be in dire peril. But freedom of speech 
does not mean that we can speak, write or publish any¬ 
thing on any subject, no matter whether it injures others 
or not, and not be held responsible therefor. It means 
simply that we may do so, but if any person is injured 
thereby we will be liable to him in damages to the full 
extent of his injury, as well as to the state criminally under 
certain circumstances. That is, other people have rights 
as well as ourselves, which we are bound to respect, and 
therefore if we speak, write or publish anything that injures 
them in their reputation, it is but just and right that we 
should be held responsible therefor. 

But in all civil cases for libel the truth of the matter 
spoken, written or published, and all other mitigating cir¬ 
cumstances, may be proven in justification, for the purpose 
of reducing the amount of damages. And in all criminal 
prosecutions for libel the truth of the matter written or 
published may also be proven by the person accused for the 
purpose of securing his acquittal, but no person can be 
acquitted for libel unless he proves, in addition to the 
truth of such matter, that the same was written or pub¬ 
lished without any malice or spite on his part, and that 
he did so, not for the purpose of injuring any one’s rep¬ 
utation, but to do some good. This is different from the 
old common law rule that ‘‘the greater the truth, the greater 
the libel,” and it is decidedly more just. 

In most cases it is the office of the judge to determine 
the law and the jury to determine the facts, but in libel suits 
and prosecutions under this section it is the office of the 
jury to determine both the law and the facts, under proper 
instructions as to what the law is by the court. 


[3: 10] 


OF MONTANA. 


25 


SECTION II. 


KX POST FACTO TAWS, FTC. 

No ex post facto law, nor law impairing the obligation oi contracts, or 
making any irrevocable grant of special privileges, franchises and immunities 
shall be passed by the Legislative Assembly. 

An c.r post facto law is one which is designed to punish 
as criminal the commission of certain acts committed before 
the law was passed which at the date of their commission 
were not criminal, or to inflict a greater punishment on 
one for the commission of a criminal act than that which 
he would have received were he prosecuted under the law 
in force at the time the crime was committed. In other 
words, to quote fronr the Supreme Court of the United 
States, “An c.v post facto law is one which renders an act 
punishable in a manner in which it was not punishable 
when it was committed.” 

A law impairing the obligation of contracts is one which 
in any manner changes the terms of a contract previously 
entered into, thereby making the same entirely void or of 
less value to either one or all of the parties thereto than 
it was prior to the date of the passage of such law. For 
instance, if one person should enter into an agreement with 
another to do certain lawful things, under certain condi¬ 
tions, and the legislature shortly after same was entered 
into should pass a law the efiect of which would be, could 
it be enforced, to invalidate such agreement or make it of 
less value to either or both of the parties than it otherwise 
would have been, such law, so far as it applies to this and 
other similar contracts entered into before its passage, 
would be one impairing the obligation of contracts, and 
therefore void. But the Legislative Assembly has the power 
to pass all laws relative to the conditions of future valid 


[3:11] 


26 


civiiv govi:rnment 


contracts. The obligation of contracts void from the be¬ 
ginning, however, such as contracts for immoral purposes, 
etc., is not impaired by the passage of a law annulling them, 
for the}' never had any legal existence and could never be 
enforced. This proviso has the same effect in civil cases as 
tlie one concerning c,v post facto laws has in those of a 
criminal nature. 

The reason for the above two provisions is plainly ap¬ 
parent, so it will not be necessary to comment thereon. 
lUit their insertion in our state Constitution was entirely 
needless, as they are forbidden to the states by Article I., 
Section lo, of the United States Constitution. 

Neither can the legislature pass any law making an 
irrevocable grant of any special privileges, franchises or im¬ 
munities, but it may grant such special privileges, fran¬ 
chises or immunities with the condition that they may be 
rh’okcd by it or any subsequent legislature at any time. 
This provision is very important, as it interposes a barrier 
on behalf of the people against their being saddled with 
obligations, special in their nature, and which may in time 
become burdensome and even threaten their very liberties. 

SECTION 12. 

IMPRISONMENT FOR DEBT. 

No person shall be imprisoned for debt except in the manner prescribed 
by law, upon refusal to deliver up his estate for the benefit of his creditors, or 
in cases of tort where there is strong presumption of fraud. 

One of the great curses of European nations was im¬ 
prisonment for debt. In order to guard against this, ex¬ 
cept in certain extreme cases where common sense dictates 
that a creditor should be allowed to arrest his debtor if he 
wishes so to do, the foregoing section was inserted. These 
cases are: First, when a debtor refuses to give up his 


[3:12] 


MONTANA. 


27 


property to his creditors, and is about to either dispose of 
or transport same out of this state, with intent to defraud 
them; and, second, when because of his incurring certain 
liabilities not arising from contract, it is his fraudulent 
intent to dispose of all property in his possession, part or all 
of which property might belong to the person or persons 
to whom he is liable, and thus render any judgment his 
creditors might recover against him incapable of satisfac¬ 
tion. But one arrested for debt cannot be imprisoned if lie 
furnishes to his creditors an indemnity bond signed by suffi¬ 
cient sureties to guarantee the payment of his obligations 
if judgment goes against him, and in no case more than 
twenty-four hours unless his creditors pay to the sherif¥ the 
expenses of keeping him. 

SECTION 13. 

RIGHT TO BEAR ARMS. 

The right of any person to keep or bear arms in defense of his home, per¬ 
son or property, or in aid of the civil power when thereto legally summoned, 
shall not be called in question, but nothing herein contained shall be held 
to permit the carrying of concealed weapons. 

The guaranty given to the people of Montana by this 
section is an extremely important one, for besides bestow¬ 
ing upon them an additional security to. their persons, 
homes and property than that aflorded by the regular con¬ 
stituted authority, it also enables them to be constantly 
familiar with and proficient in the use of firearms, which is 
very important indeed in a nation that depends almost 
wholly upon her citizen-soldiers to defend her. 

By virtue of the laws enacted under this section, any 
Montanian may not only bear arms to protect his own per¬ 
son, home or property, but also to protect the homes, per¬ 
sons and property of those whom he is bound either morally 

[3:13] 


28 


CIVIL GOVERNMENT 


or legally to protect. Thus, a husband may bear arms in 
defense of his wife, a father in defense of his son or daugh¬ 
ter, a son in defense of his father, mother or sister; a mas¬ 
ter in defense of his servant, etc., and all able-bodied males 
between the ages of eighteen and forty-five must bear arms 
in defense of their homes and country when called upon 
to do so, or to suppress local insurrection or keep the peace 
in their respective counties, when called upon by the sheriff' 
thereof for that purpose. 

But this guaranty to bear arms means that they must 
be borne openly, so that they can be readily seen. This was 
so provided to guard against secret stealth, by enabling a 
person to as great an extent as possible not to be taken 
unawares. 

SECTION 14. 

PRIVATE PROPERTY CANNOT BE TAKEN WITHOUT JUST COM¬ 
PENSATION. 

Private property shall not be taken or damaged for public use without 
just compensation having been made to, or paid into court for the owner. 

It often becomes necessary that private property, and 
especially lands, should be taken for public or g?/a.yf-public 
purposes. The right to do this is called the right of ^^emi- 
nent domain.” Thus, under the right of eminent domain, 
the state, county, city or town, and even a school district, 
has the power to take private property for its own use 
whenever such a course is necessary. Railway corpora¬ 
tions, being g7/a.yf-public in nature, may do likewise for 
their road-beds, depots, etc., as may also other companies 
or persons for undertakings of a similar nature. This is 
because if such were not the case, the hands of the public 
would be hopelessly tied in this respect, and progress be 
delayed an hundred years. 

[3:14] 


OF MONTANA. 


29 


But before private property can be taken for public use 
the owner thereof must be fully compensated therefor. 
This may be accomplished by agreement between the par¬ 
ties as to the amount to be paid, but if they cannot come 
to an agreement in this respect, then an action must be 
commenced in the district court for the purpose of ^^con¬ 
demning” the property sought to be taken and its value 
determined by three commissioners appointed by the court. 
If either party is not satisfied with the award made by these 
commissioners, then he may appeal to the court within 
thirty days from the date on which their report is filed, in 
which event the value of the property condemned and in 
dispute must be re-assessed by a jury, the verdict of which 
is final and must be accepted by all parties. The reason 
for the provision that no private property shall be taken 
for public use without compensation is very apparent, for 
it would be manifestly unjust if such were not the case. 
Besides, it would be in violation of that principle of the 
Constitution that every man shall be secure in the enjoy¬ 
ment of his life, his liberty and his property. 

SECTION 15. 

WATKR RIGHTS, ETC. 

The use of all water now appropriated, or that may hereafter he appro¬ 
priated for sale, rental, distribution or lother beneficial use and the right of 
way over the lands of others, for all ditches, drains, flumes, canals and 
aqueducts, necessarily used in connection therewith, as well as the sites of 
reservoirs necessary for collecting and storing the same, shall be held to be 
a public use. Private roads may be opened in the manner to be prescribed 
by law, but in every case the necessity of the road, and the amount of all 
damages to be sustained by the opening thereof, shall be first determined 
by a jury, and such am.ount together with the expenses of the proceeding 
shall be paid by the person to be benefited. 

In order to encourage the irrigation of lands otherwise 
unproductive and almost useless, the provision in the fore¬ 
going section making the appropriation of all waters for 

[3: 15] 


30 


CIVIIv GOVERNMENT 


sale, rental, distribution or other beneficial purposes, to¬ 
gether with the right of way over the lands of others for 
the construction of canals, ditches, aqueducts, etc., neces¬ 
sarily used in connection therewith, as well as reservoirs 
necessary for collecting and storing the same, a public 
use, in order that private property might be taken under 
the right of eminent domain for such purposes, was inserted. 
The manner of taking private property for these purposes 
is the same as that in which the state, a county, a railway 
company, etc., takes the same. 

The second provision relative to private roads was in¬ 
serted in order to guarantee to one who has taken up or 
purchased lands in such a position as to make it impossible 
for him to reach the public highway without going over 
the lands of others, the right to have a private road of his 
own opened over such lands. But before this can be done 
the person thus situated must show to the satisfaction of 
a jury, unless he can enter into an agreement with the 
party over whose lands he desires to travel for the purchase 
of a right-of-way, that such private road is necessary, and 
must pay into court the value of such road as appraised 
by such jury, together with the costs of the proceeding. 
It will be noticed that the mode of procedure in condemn¬ 
ing and determining the value of property taken for private 
roads is different than that usually followed in exercising 
the right of eminent domain; in this, that a jury must de¬ 
termine both the necessity of the road and the value of the 
property taken, while in the usual exercise of the right of 
eminent domain the necessity for taking the property is 
determined by the court and the value thereof is assessed 
by three commissioners first, and then, if the matter is 
appealed, by a jury. 


[3; 15] 


OI^ MONTANA. 


'31 


SECTION i6. 

RIGHTS OF PERSONS ACCUSED OF CRIME. 

In all criminal prosecutions the accused shall have the right to appear 
and defend himself in person or by counsel; to demand the nature and cause 
of the accusation; to meet the witnesses against him face to face; to have 
process to compel the attendance of witnesses in his behalf; and a speedy 
public trial by an impartial jury of the county or district in which the offense 
is alleged to have been committed, subject to the right of the state to have 
a change of venue for any of the causes for which the defendant may obtain 
the same. 

All criminal cases in this state are carried on ^dn the 
name and by the authority of the State of Montana,” and 
with the exception of some petty inferior court oflenses 
are prosecuted by the county attorney of the countv in 
which such cases are alleged to have been committed. 
Hence, it follows as a matter of simple justice that since 
the state has the right to have one who is skilled m the 
technicalities of the law and the procedure of the court to 
prosecute its case for it, the accused had surely ought to 
have the same right. And so important is this right 
thought to be that if the accused is too poor to pay his 
own attorney, and desires the services of one, it is the duty 
of the court to appoint an attorney to act for him, who 
receives his compensation from the county. But one ac¬ 
cused of crime may defend his own case if he chooses. 
And even if he has an attorney defend it for him, he has 
the right to speak in his own behalf if he is so minded. 

The right of the accused to demand the nature and cause 
of the accusation preferred against him was secured to him 
in order that he might be in a position to prepare his de¬ 
fense, and, if he is innocent, an opportunity to prove the 
same. 

One accused of crime has, in addition, the right to meet 
the witnesses of the state face to face, and also to have 


[3:16J 


32 


civiiv governme:nt 


compulsory process to compel the attendance of his own 
witnesses. This means that such person or his counsel 
shall have the right to cross-examine the state’s witnesses 
in order to determine whether they are telling the truth 
or not; and that he shall have the right to compel the 
attendance by subpoena of certain persons whom he thinks 
will testify in his favor. The justice of this becomes very 
evident when we consider that the state has the right to 
compel by subpoena the attendance of witnesses in its own 
behalf, and has also the right to cross-examine the witnesses 
of the accused. 

The right of the accused to have a speedy and public trial 
is also very important, for it guards against his being thrown 
into jail for an indefinite or unreasonable time before he is 
given a trial, and is more likely to secure to him a fairer trial 
than if the same was held privately. So is the right that he 
shall be tried by an impartial jury of the county or district 
in which his offense is alleged to have been committed. 
This is considered one of the most substantial pillars of 
personal liberty. But if the accused finds that the presid¬ 
ing judge is prejudiced against him, or that the people of 
such county or district are so prejudiced against him that 
he cannot obtain a fair trial therein, or that it is impossible 
to obtain a jury having the requisite qualifications in such 
county or district, or that the presiding judge is kin or has 
been counsel for either party, or that the county attornev 
or prosecuting witness has an undue influence over the 
minds of the people of such county or district, then he shall 
be entitled to have a “change of venue” to some neighbor¬ 
ing county in which such prejudice, etc., does not exist. 
The state may, however, by virtue of this section, obtain 
a change of venue for the same reasons that the accused 
may obtain one. 


[3: 16] 


OF MONTANA. 


33 


SECTION 17. 

IMPKTSONMFNT OF PROSECUTING WITNESS. 

No person shall be imprisoned for the purpose of securing his testimony 
in any criminal proceeding longer than be necessary in order to take his 
deposition. If he can give security for his appearance at the time of trial 
he shall be discharged upon giving same; if he cannot give security, hia 
deposition shall be taken in the manner prescribed by law, and in the pres¬ 
ence of the accused and his counsel, or without their presence if they shall 
fail to attend the examination after reasonable notice of the time and place 
thereof. Any deposition authorized by this section may be received in evi¬ 
dence on the trial, if the witness shall be dead or absent from the state. 

It at times happens that it is the intention of the ehief 
witnesses upon whom the prosecution depends to convict 
one of crime to either conceal themselves so that they can¬ 
not be found and served with process at the time the case 
is called or to leave the state entirely, in order that they 
may not be compelled to give testimony against the accused 
and thereby insure his acquittal. To guard against this it 
has been the policy of all governments from time im¬ 
memorial to arrest such witnesses and hold them until after 
the trial. But such a mode of procedure, it was found, 
almost invariably indicted great hardships on innocent per¬ 
sons, so in order to interpose a barrier to anything of this 
nature the foregoing section was framed and adopted. 

Under it no witness who is supposed to harbor the in¬ 
tent to either conceal himself or leave the state in order that 
he may not be compelled to testify against the accused can 
be arrested and held for a longer time than is necessary 
for the reduction of his testimony to writing in the form 
of what is called a deposition; or if he is able to and does 
give a bond as security for his appearance at the trial he 
cannot be held even that long. This deposition thus taken 
may be received in evidence on the trial if such witness is 
either dead or absent from the state, but not otherwise. 

[3:17] 


34 


CIVIIv GOVERNMENT 


SECTION i8. 

ADDITIONAL RIGHTS OF PERSONS ACCUSED OF CRIME. 

No person shall be compelled to testify against himself, in a criminal 
proceeding, nor shall any person be twice put in jeopardy for the same offense. 

In the olden time it was the custom of making-, or at¬ 
tempting to make, persons accused of crime testify against 
themselves. To attain this end various devices and schemes 
were resorted to, such as the rack, the whipping post, etc. 
Such a proceeding, of course, was cruel, inhuman and un¬ 
just, and to guard against its occurrence in this state the 
first provision of this section was inserted. But one may 
testify against himself if he wishes to do so, by either plead¬ 
ing guilty or making a confession in open court, which 
amounts to the same thing. And besides, in addition to 
protecting the accused from being compelled to give tes¬ 
timony against himself, this section also protects a witness 
in a criminal prosecution from being compelled to give 
testimony which would tend to incriminate himself. 

The second provision, that one shall not be put in jeop¬ 
ardy twice for the same offense, means that he cannot be 
tried and punished more than once for the commission of 
the same identical crime. Thus, if one is convicted of 
larceny on the first day of January, 1900, and is sentenced 
to serve one year in the state penitentiary, he cannot be 
again arrested and tried for that offense, though he may 
be if he commits another act of larceny after he gets out 
of the penitentiary. But if a person is tried and the jury 
disagrees, or he is tried and convicted and upon appeal the 
case is reversed and remanded for a new trial, he has not 
been put in jeopardy within the meaning of this section, 
and may be again tried for the same offense before a new 
jury. 


[3:18] 


OF MONTANA. 


35 


SECTION 19. 


r.AILABLE OFFENSES. 

All persons shall be bailable by sufficient sureties, except for capital 
offenses, when the proof is evident or the presumption great. 

This section means that all persons arrested to answer 
for crime must, np to the time they are convicted thereof, 
and even after conviction in certain cases on appeal, be set 
at liberty if they furnish to the sheriff of the county in 
which the crime they are charged with is alleged to have 
been committed an undertaking with sufficient sureties to 
secure their appearance at the time of trial, except in those 
cases capital in their nature, such as treason and murder, 
when it is evident that the person m custody committed 
the same, or the presumption that such is the case is great. 
The amount in which this undertaking must be given is 
determined by the committing magistrate at the time of 
or at any time prior to commitment, or by the district judge 
at or before the time the warrant is issued. 

SECTION 20. 

EXCESSIVE BAIL. 

Excessive bail shall not be required, or excessive fines imposed, or cruel 
and inhuman punishments inflicted. 

In order that the magistrates whose duty it is to fix the 
amount of bail upon the furnishing of which one accused 
of crime must be set at liberty, as provided in the last sec¬ 
tion, might not fix the amount so high that it would be 
l)ractically impossible to secure same, the further provision 
that bail shall not be excessive was inserted. Under it, 
should the committing magistrate ask too great bail, the 
case can be taken before the district judge on a writ of 

[3:19-20] 


36 


civil,. GOVERNMB:^'!' 


habeas corpus, and the bail reduced by him, if in his opinion 
it is excessive. If the district judge als6 fixes the bail too 
high, the case can be carried to the supreme court in the 
same manner. 

A person convicted of any crime not capital may be 
punished either by imprisonment in the state penitentiary 
or county jail, or by fine, or by both, as prescribed by law. 
But in order that such fine may not be unjust, or practically 
amount to a forfeiture of estate, it was further provided 
that it should not be excessive. If fines are excessive, 
an appeal can be had as in other cases. 

By cruel and inhuman punishment is meant burning at 
the stake, drawing and quartering, torturing with hot irons, 
etc. Until the last two centuries these were universally 
inflicted, but have now been abolished in nearly all coun¬ 
tries, our own nation and state included. 

> 

SECTION 21. 

WRIT OF H.\BEAS CORPUS. 

The privilege of the writ of habeas corpus shall never be suspended, unless, 
in case of rebellion, or invasion, the public safety require it. 


The writ of habeas corpus is the remedy given for the en¬ 
forcement of the civil right of personal liberty. Thus, if 
one believes that he is unjustly or illegally imprisoned or 
restrained of his liberty, he can apply for a writ of habeas 
corpus to compel the officer or person in whose custody he 
is to either show a legal authority for such restraint, or, 
failing in this, to set him free. This great prerogative writ 
is the best and only suflicient defense of personal freedom. 
Therefore, that the important privilege afforded by it might 
be reserved to the people the more securely by means of 
the Constitution it was inserted therein. 


[3:211 


OI^ MONTANA. 


.37 


But there are times when the public safety might require 
the suspension of the privileges of this great writ, such as 
in case of rebellion or invasion. At these times the slow 
justice of peace must give way to the summary, though- 
less fair, justice of war—the civil law must give way to 
martial law. Hence, this section provides that in case of 
invasion or rebellion only can the privileges of the writ of 
habeas corpus be suspended. 


SECTION 22. 

MIUTAKY SUBORDINATION. 

The military shall always be in strict subordination to the civil power; 
no soldier shall in time of peace be quartered in any house without the con¬ 
sent of the owner, nor in time of war, except in the manner prescribed by law. 

This section was inserted to accomplish two objects. 
The first of these was to guard against the state govern¬ 
ment being seized by a successful commander and turned 
into a military despotism. This is accomplished by ren¬ 
dering the Governor, who is commander-in-chief of the 
state militia, and therefore has the right to appoint the 
officers thereof, liable to impeachment by the civil atithority 
if he himself entertains any high-handed designs or refuses 
to remove officers who entertain such designs. 

The second object is to protect the people from the re¬ 
enactment of one of the principal grievances against which 
our forefathers rebelled—the compelling of private persons 
against their consent to feed and shelter the soldiers of their 
oppressors. But they may be thus quartered if the owner 
consents thereto, or if, in time of war, the public safety 
demands that they should be. 


[3:22] 


38 


Civil, GOVERNMENT 


SECTION 23. 

RIGHT OF TRIAL BY JURY, 

The right of trial bj' jury shall be secured to all, and remain inviolate, 
but in all civil cases and in all criminal cases not amounting to felony, upon 
default of appearance or by consent of the parties expressed in such manner 
as the law may prescribe, a trial by jury maj^ be waived, or a trial had by 
any less number of jurors than the number provided by law. A jury in a 
justice’s court, both in civil cases and in cases of criminal misdemeanor, shall 
consist of not more than six persons. In all civil cases and in all criminal 
cases not amounting to felony, two-thirds in number of the jury may render 
a verdict, and such verdict shall have the same force and effect as if all of 
such jury concurred therein. 

The purpose of this section is to secure to the people of 
Montana inviolably the old and much revered English 
custom, which came to us as a part of that rich English 
inheritance of ours, the common law, that the questions of 
fagt in both civil and criminal cases, with some exceptions, 
shall be tried by a number of unprejudiced citizens, collec¬ 
tively called a jury, and that the questions of law shall be 
tried ])y the court. This was believed to insure a fairer trial 
than could be had if both the questions of law and fact 
were decided by the court, and to interpose a very material 
safeguard to personal freedom. 

In this state a jury consists of twelve persons duly quali- 
hed and chosen impartially from the county in which they 
are required to sit, with the exception that in the trial of 
both civil and criminal suits before a justice of the peace 
the number shall consist of not more than six persons, and 
vvith the further exception that in any event a jury may 
consist of a less number than that provided by law, if both 
parties consent thereto. But in all cases of a civil nature, 
and in all criminal cases not amounting to felony (offenses 
not punishable by death or by imprisonment in the state 
penitentiary), a verdict may be rendered by the concurrence 

[3:23] 



MONTANA. 


39 


of two-thirds of the whole number of jurors, which verdict 
has the same force and effect as if the whole number con¬ 
curred therein, and this is true whether such cases were 
tried in the district court or before a justice of the peace. 

There are certain cases, however, in which a trial by jury 
may be waived, as follows: In all criminal prosecutions, 
whether they amount to felony or not, a jury is waived if 
the defendant pleads “guilty’’ to the charge preferred 
against him. This is because his pleading thus has the 
same effect as if the jury found a verdict of “guilty” 
against him. If he does not plead guilty, jiowever, and the 
charge preferred against him amounts to felony, then he 
must be tried by jury, and the same cannot be waived. But 
in all criminal prosecutions not amounting to felony the 
rule is different, for although the defendant is entitled to a 
jury trial as in other cases, yet the same may be waived by 
the consent of both parties made in open court and entered 
in the docket or minutes. In such event the case is tried 
by the judge or justice of the peace or police judge sitting 
alone. 

So much in regard to the waiver of a jury in criminal 
prosecutions; now as to civil suits. In these the right of 
trial by jury may be waived in all cases if both parties con¬ 
sent thereto, coupled with the consent of the presiding 
judge under certain circumstances, though it is the pre¬ 
sumption in all civil cases brought in the district court that 
a jury must be had unless the same is expressly waived. 
This is entirely the reverse of the rule relative to all civil 
suits brought before a justice of the peace, however, for in 
such cases it is presumed that the services of a jury are not 
required, and hence the case will be tried without one unless 
either party expressly demands a jury trial. Trial by jury 
may also be waived in certain civil suits when the defend¬ 
ant fails to answer or demur to the plaintiff’s complaint 


IG 


[3: 23] 


40 


CIVIL GOVERNMENT 


within tlie period of twenty days after he was served with 
snnimons, in which case the plaintiff is entitled to judg¬ 
ment by default. 

This section applies only to all cases at law. All cases in 
equity are decided by the judge alone. 

SECTION 24. 

FOUNDATION OF CRIMINAL LAWS. 

I.aws for the pimishi-nent of crime shall be founded on the principles of 
reformation and prevention, but this shall not affect the power of the legisla¬ 
tive assembly to provide for punishing offenses by death. 


The foregoing section was designed simply for the pur- 
])ose of laying down a rule which the Legislative Assembly 
of this state must follow in prescribing the punishment of 
crime. Under it no law can be passed providing for the 
punishment of a criminal offense, except in those cases 
where the death penalty is intiicted, unless such law is so 
framed as to tend to reform the person convicted and to 
])revent others to as great an extent as possible from com¬ 
mitting a similar offense. 

SECTION 25. 

RIGHTS OF ALIENS, ETC. 

Aliens and denizens shall have the same right as citizens to acquire, pur¬ 
chase, possess, enjoy, convey, transmit and inherit mines and mining prop¬ 
erty, and milling, reduction, concentrating and other works, and real prop¬ 
erty necessary for or connected with the business of mining and treating 
ores and minerals; provided, that nothing herein contained shall be construed 
to infringe upon the authority of the United States to provide for the sale 
or disposition of its mineral and other lands. 


An alien is one not a citizen of the United States, but a 
citizen or subject of some foreign power. A denizen, in the 


[5: 24-25] 


OI^ MONTANA. 


41 


United States, is one occupying a sort of middle ground 
between an alien and a natural-born citizen, and partakes of 
the nature of both. Under the common law an alien could 
neither purchase, devise nor inherit real property; and while 
a denizen could both purchase and devise such property, 
yet he also could not inherit it. In order to change this 
rule in regard to mining property, which is real estate, and 
thus encourage to as great an extent as possible the devel¬ 
opment of one of our chief though still infant industries, 
i. e., mining, the foregoing section was adopted. 

SECTION 26. 

FREEDOM OF ASSEMBLY AND OF PETITION. 

The people shall have the right peaceably to assemble for the common 
good, and to apply to those invested with the powers of government for 
redress of grievances by petition or remonstrance. 

Even to this day in many foreign nations the people are 
forbidden to assemble together for the purpose of dis¬ 
cussing political questions, for fear that if they were 
allowed to do so a revolution against the constituted au¬ 
thority would the easier be brought about. But in this 
country the people, and not one man or a small body of 
men, are the sovereigns, and hence the reason for their 
being prevented from meeting together for political pur¬ 
poses is entirely absent. And not only are the people of this 
country given the right to assemble together for political 
purposes, but also for religious, social and even for treason¬ 
able purposes. The only restriction is that while thus 
assembled they must behave themselves and neither harm 
anybody nor disturb the peace and quiet of others. The 
reverse also holds good. 

As the people in this state and nation are, in theory at 
least, the sources of all law, it of course naturally follows 


[3:26] 


42 


CiVIIv GOVBiRNMKNT 


that they should have the inviolable right to petition or 
remonstrate with those whom they themselves have in¬ 
vested with the powers of government, as their special 
servants, for the purpose of redressing any grievance they 
may have, or for other purposes. And so important is this 
right thought to be that the state legislature must receive 
and listen to all petitions or remonstrances made to it, 
although it may or may not heed the same, as it sees fit. 
This applies also to Congress and to county and district 
boards, as well as to city councils. 


SECTION 27. 

RIGHTS OF PERSONS, ETC. 

No person shall be deprived of life, liberty or property without due process 
^jf law. 

This section was inserted as an additional guaranty to the 
people in the enjoyment of their lives, their liberties and 
their property, by providing that none of these shall be 
taken away without due process of law. Its meaning is that 
the life of no person in this state, nor his liberty, nor his 
property, shall be taken away except by a course of legal 
proceedings according to the established Constitution and 
laws of this state and the Constitution and Laws of the 
United States relative to the enforcement of private rights, 
which course of legal proceedings is appropriate to the case 
and adapted to the end to be attained. Thus, if one is 
arrested and charged with the commission of a felony, he 
is entitled to have a preliminary examination as to his prob¬ 
able guilt before he can be held to answer for same. If 
after such preliminary examination there seems to be prob¬ 
able cause for believing him guilty, and he is held to an¬ 
swer to the district court, he will be entitled to counsel, to 


[3:27] 


OF MONTANA. 


43 


meet the witnesses of the state face to face, to have a trial 
by an impartial jury, etc. This would be according to ^‘dne 
process of law,” or, to borrow from Lord Coke, according 
to “the law of the land,” which he tells ns is a phrase equiv¬ 
alent to “due process of law.” But due process of law in 
times of war is very different from what it is time of peace, 
for at such times the course of proceedings prescribed by 
martial or military law is considered such. 

SECTION 28. 


SI.AVFRY. 

There shall never be in this state either slavery or involuntary servitude, 
except as a punishment for crime, whereof the. party shall have been duly 
convicted. 

The provision in this section relative to slavery and in¬ 
voluntary servitude was needlessly inserted in our Consfi- 
tution for the reason that the Thirteenth Amendment to 
the Constitution of the United States prohibits the same 
everywhere in this Union. 

The sole exception herein contained to the prohibition of 
slavery and involuntary servitude i» one universally recog¬ 
nized. This is because a ])erson duly convicted of crime 
has lost for a time at least his right of liberty and the pur¬ 
suit of happiness, and this for the reason that the safety of 
society requires that such be the case. 

SECTION 29. 

RULK OF CONSTRUCTION. 

The provisions of this Constitution are mandatory and prohibitory, unless 
by express words they are declared to be otherwise. 

This section simply lays down a rule for the construction 
of the Constitution, by declaring that its provisions shah 

[3: 28-29] 


44 


CIVIIv GOVERNMENT 


be considered mandatory or prohibitory, unless they are 
expressly declared otherwise,—mandatory if they say that 
something shall be done, prohibitory if they say that it shall 
not be. 


wSECTION 30. 

KIOIITS RETAINED BY THE PEOREE. 

The enumeration in this Constitution of certain rights shall not be con¬ 
strued to deny, impair or disparage others retained by the people. 

It is of course impossible to fully enumerate all the per¬ 
sonal rights of the people which the constituted authority 
might be prone to trample on. Hence, to guard against the 
possible inference that such rights as are not expressly 
enumerated might be violated, this section was inserted. 

¥ 

SECTION 31. 

SUPPRESSION OF DOMESTIC VIOLENCE. 

No armed person or persons or armed body of men shall be brought into 
this state for the preservation’•of the peace or the suppression of domestic 
violence, except upon the application of the legislative assembly or of the 
governor when the legislative assembly cannot be convened. 

The object of this section is to guard ag'ainst the national 
government accepting every little act of domestic violence 
as -a pretext for meddling with Montana’s right to govern 
herself locally, and thus gradually become a menace to 
state rights. But it would seem, in view of Article IV., 
section 4 of the United States Constitution, that its inser¬ 
tion was entirely unnecessary. 


[3-30-31] 




OI^ MONTANA- 


'45 


ARTICLE IV. 

DISTRIBUTION OF POWERS. 

The powers of the government of this state are divided into three distinct 
departments: the legislative, executive and judicial, and no person or collec¬ 
tion of persons charged with the exercise of powers properly belonging to 
one of these departments shall exercise any powers properly belonging to 
either of the others, except as in this Constitution expressly directed or per¬ 
mitted. 

The government of this state is divided into three de¬ 
partments, the same as that of the United States, and for 
the same reason—the distribution of the powers of govern¬ 
ment in such a manner as to render their usurpation or 
abuse almost if not quite impossible. 

Of these three departments, the legislative is by far the 
most important, because it makes the laws which are en¬ 
forced by the executive department and which are inter¬ 
preted and applied by the judicial; and because, too, to 
a considerable extent, the powers they enjoy are conferred 
upon them by it. It is of this department that we will now 
study. 


ARTICLE V. 

LEGISLATIVE DEPARTMENT. 

SFXTION I. 

IN WHOM THE LEGISUATIVE POWER T.S VESTED. 

The legislative power shall be vested in a Senate and House of Repre¬ 
sentatives, which shall be designated “the Legislative Assembly of the State 
of Montana.” 

[4-5: ll 



46 


civiiy gove:rnmknt 


Like the legislative branch of the national government 
and those of all other states of this Union, that of onr own 
peerless state is divided into two houses—the upper one 
called the Senate, and the lower one called the House of 
Representatives. There are many reasons for this, but 
chief among them is the following: The prevention of the 
passage to a much greater extent than can now be the case 
of hasty and inconsidered legislation. 

^‘The Legislative Assembly of the State of Montana,” 
created by this section, has the power to pass all laws not 
forbidden by the state or national Constitutions, and therein 
the power to repeal or amend all laws already passed. 
This is very dif¥erent from the powers of Congress in this 
respect, for it can pass only such laws as are enumerated 
in the Lbiited States Constitution, or which can be implied 
froni these. 


SECTION 2. 

TERM OF OFFICE OF SENATORS AND REPRESENTATIVES. 

Senators shall be elected for the term of four years, and Representatives 
for the term of two years, except as otherwise provided in this Constitution. 

The members of the upper house of our Legislative As¬ 
sembly are called Senators, while those of the lower house 
• are called Representatives. The reason for making the term 
of office of Senators longer than that of Representatives 
was to render them more independent of their constituents, 
and therefore more conservative, while the reason for mak¬ 
ing the term of office of Representatives two years, and 
not one or more than two, was to give them a sufficient 
time to attempt to enact all necessary and needful legisla¬ 
tion, and at the same time not be able to accomplish any 
great harm before the people could elect another House 
and through it right matters again. 

[5:2] 


OF MONTANA. 


47 

The exception to the four-year term of Senators is that 
one-half of those elected to the first Legislative Assembly 
shall hold office one year and the balance three years, but 
at the present time this is of no importance. All Senators 
now hold office four years and all Representatives two 
years, unless they resign or become disqualified. 

SECTION 3. 

QUAUFICATIONS OF ASSEMBLYMEN. 

No person shall be a Representative who shall not have attained the age 
of twenty-one years, or a Senator who shall not have attained the age of 
tAventy-fcnr years, and who shall not be a citizen of the United States, and 
who shall not (for at least twelve months next preceding his election) have 
resided within the county or district in which he shall be elected. 

Lhuler this section no person can be a state Representa¬ 
tive unless he is twenty-one years of age, or a state Senator 
unless he is twenty-four, or neither unless he is a citizen 
of the United States and a resident for at least one year 
next preceding his election of the district or county from 
which he shall be chosen. The object of this is to make 
all persons elected to the Legislative Assembly familiar with 
the institutions of our state and nation, and with the re¬ 
quirements and wishes of the district or county he is chosen 
to represent. Senators are required to be of a greater age 
than Representatives before they can qualify, for the reason 
that the greater cttgnity of their office would suggest that 
such be the case. 


SECTION 4. 

NUMBER OF MEMBERS. 

The Legislative Assembly ©f this state, until otherwise provided by law, 
shall consist of sixteen members of the Senate, and fifty-five members of the 
House of Representatives. 


[5:3-4] 


48 


CIVIL GOVERNMENT 


It shall be the duty of the first Legislative Assembly to divide the state 
into Senatorial and Representative districts, but there shall be no more than 
one Senator from each county. The Senators shall be divided into two 
classes. Those elected from odd-numbered districts shall constitute one 
class, and those elected from even-numbered districts shall constitute the 
other class; and when any additional Senator shall be provided for by law 
his class shall be determined by lot. 

One-half of the Senators elected to the first Legislative Assembly shall 
hold office for one year, and the other half for three years; and it shall be 
determined by lot immediately after the organization of the Senate, whether 
the Senators from the odd or even numbered districts shall hold for one or 
three years. 


At the present time the state Senate consists of twenty- 
four members and the state House of Representatives of 
sixty members. The Legislative Assembly which will 
meet in January, 1903, however, will consist of twenty-six 
Senators and sixty-seven Representatives. 

It will be noticed from the foregoing section that only 
a portion of the Senators go out of office on the first 
Wednesday after the first Monday of November in every 
even-nnmbered year, the remainder holding office until the 
first Wednesday after the first Monday of November in the 
next succeeding even-numbered year, and so on. The 
purpose of this is to at all times have at least a few ex¬ 
perienced legislators in our legislative halls, and to give the 
Senate added dignity, free it to a certain extent from the 
influence of hasty and inconsidered public opinion, and 
make it more conservative than it perhaps would other¬ 
wise be. ^ 

It will also be noticed that the ratio which the whole 
number of Representatives shall bear to the whole number 
of Senators, except so far as the first Legislative Assembly 
was concerned, in which the proportion was fixed at about 
three and one-half to one, is left entirely undetermined by 
this section, and in fact by the entire Constitution. Hence, 
the Legislative Assembly can increase or decrease the num- 


[5:4] 




OF' MONTANA. 


49 


ber of Representatives to any number it pleases so long 
as it Jceeps within reasonable bounds. The proportion is 
now about two and one-half to one in favor of the House 
of Representatives. 

As the law is at present, each county now in existence 
and each new county that may hereafter be created shall 
be entitled to no less and no more than one Senator; and 
such new county is also entitled to at least one Represen¬ 
tative until otherwise provided l)y law. 

SECTION 5. 

COMPENSATION OF MEMBERS. 

Each member of the first Legislative Assembly shall receive as a com¬ 
pensation for bis services six dollars for each day’s attendance, and twenty 
cents for each mile necessarily traveled in going to and returning from the 
seat of government to his residence by the usually traveled route, and shall 
receive no other comipensation, perquisite or allowance whatsoever. 

No session of the Legislative Assembly, after the first, which may be 
ninety days, shall exceed sixty days. 

After the first session the compensation of the members of the Legislative 
Assembly shall be as provided by law; provided, that no l^egislative Assem¬ 
bly shall fix its own compensation. 

The compensation fixed by law for members of the Leg¬ 
islative Assembly at this time is the same as that fixed by 
the Constitution for the members of the first Legislative 
Assembly—six dollars per day and twenty cents per mile 
in going from and returning to their places of residence 
from the seat of government. But no Legislative Assembly 
can fix the compensation of its own members, but it may 
either increase or diminish the compensation of the mem¬ 
bers of its successor. This was so provided to guard 
against the possibility of the members of any legislature 
appropriating or voting to themselves extravagant salaries. 

Under this section no Legislative Assembly at the pres¬ 
ent time can be in session more than sixty days, though it 
may be for a less period than sixty days. The purpose 

[5:5] 


50 


CIVIL GOVERNMENT 


of this is to prevent the accruing against tlie state of the 
enormous expense that would naturally result from a longer 
session of the legislature, and yet afford sufficient time to 
pass such laws as the welfare and ha])piness of the people 
demand. 


SECTION 6. 

SESSIONS OF THE LEGISLATIVE ASSEMBLY. 

The Legislative Assembly (except the first) shall meet at the seat of gov- 
ernmient at twelve o’clock, noon, on the first Monday in January, next suc¬ 
ceeding the general election provided by law, and at twelve o’clock, noon, on 
the first Monday of January, of each alternate year thereafter, and at other 
times when convened by the Governor. 

The term of service of members thereof shall begin the next day after their 
election, until otherwise provided by law; provided, that the first Legislative 
Assembly shall meet at the seat of government upon the proclamation of the 
Governor, after the admission of the state into the Union, upon a day to be 
named in said proclamation, and which shall not be more than fifteen nor 
^ less than ten days after the admission of the state into the Union. 

The Legislative Assembly of this state must now meet 
on the first Monday of January, at high noon, in each odd- 
numbered year, and may be convened at such other times 
as the Governor might think necessary. This latter is 
brought about by the Governor issuing a proclamation 
calling the members of the legislature together in what is 
called ^^special session,” to distinguish it from the regular 
session which must meet biennially as provided in this Con¬ 
stitution. But the Governor can only issue such procla¬ 
mation on extraordinary occasions, and the reason or rea¬ 
sons for which the legislature is convened in special session 
must be clearly stated therein. 

The term of service of all Senators and Representatives 
commences on the next day after their election ; that is, 
on the first Wednesday after the first iMonday of November 
in each even-numbered year. This may be changed when¬ 
ever the legislature sees fit to do so, but as yet it has never 
exercised the power reposed in it in this respect. 

[5:6] 


MONTANA. 


51 


SECTION 7. 

RESTRICTIONS ON MEMBERS. 

No Senator or Rei)resentative shall, during the term for which he shall 
have been elected, be appointed to any civil office under the state; and no 
member of Congress or other person holding an office (.except notary public, 
or in the militia) under the United States or this state, shall be a member 
of cither house during his continuance in office. 

This section has two objects. The first of these is to 
keep the legislators free from the infiuence of the executive 
branch of the government by declaring that none of them 
shall be appointed to a civil office under this state during 
their respective terms, and thus give effect to the reason 
for dividing the powers of government into three branches. 
The second of these is to render the members of the Legis¬ 
lative Assembly entirely independent of the influence, of 
die general government, and thus keep them ever on the 
alert against the encroachments of federal power. 

In other words, no person under this section can be a 
member of the Legislative Assembly of Alontana, and hold 
any other office, state or national, at the same time, except 
that of notary public or an appointment in the state militia. 

SECTION 8. 


INCREASE OE SALARY. 


No member of either house shall, during the term for which he shall have 
been elected, receive any increase of salary or mileage under any law passed 
during such term. 


For fear that section 5 of this Article might be construed 
to mean that although members of the Legislative As¬ 
sembly could not fix their own salaries, yet that they would 

[5:7-8] 


52 


civile gove:rnmknt 


have the power to increase the same thereunder, the fore¬ 
going section was inserted. The reason for it is the same 
as that for such part of section 5, as relates to the deter¬ 
mining of salaries of members by their own votes. 


SECTION 9. 

OFFICERS AND ELECTIONS. 


The Senate shall, at the beginning and close of each regular session, and 
at such other times as may be necessary, elect one of its members president 
pro tempore. The House of Representatives shall elect one of its members 
speaker. Each house shall choose its other officers, and shall judge of the 
elections, returns and qualifications of its own members. 

The officers of the Senate are the President, who is the 
presiding officer, the President pro tempore, who presides 
over the Senate when the President is absent or has re¬ 
signed or is disqualified or is acting as Governor, a Secre¬ 
tary, an Assistant Secretary, a Journal Clerk, a Sergeant- 
at-arms and as many assistants and minor officers as may 
be required. Those of the House are the same as those 
of the Senate, the only difference being that the presiding 
officer is called the Speaker, instead of the President; the 
one who presides when the Speaker is absent or disquali- 
fiedr the Speaker pro tempore, instead of the President 
pro tempore; the officer performing for the House the 
same duties as the Secretary of the Senate performs, the 
Chief Clerk; and the one which corresponds with the 
Assistant Secretary of the Senate, the Assistant Chief Clerk. 
These officers are all chosen by their respective houses, ex¬ 
cept the President of the Senate, who is the Lieutenant 
Governor and is elected by the people. And with the ex- 


MONTANA. 


53 


ception of the President pro tern, of the Senate, who must 
be a member thereof, and the Speaker and Speaker pro 
tern, of the Plouse of Representatives, who must also be 
members thereof, the officers of neither house can be mem¬ 
bers of the Legislative Assembly. 

And in addition to giving each house the power to elect 
or appoint its own officers, except as heretofore stated, this 
section also confers upon each one the power to judge of 
the elections, returns and qualifications of its own members. 
In other words, each house is given the power to determine 
absolutely who are and who are not entitled to membership 
in it, and its decision in this respect Is final and cannot be 
inquired into by any court, as is the case with state and 
county officers. This right of our legislative body to judge 
of the elections, returns and qualifications of its own mem¬ 
bers is very important, and has long been recognized in 
free countries as necessarily belonging to a legislative body, 
in order that it may be in a position to maintain its purity 
and independence. 


SECTION lo. 

QUORUM. 

A majority of each house shall constitute a quorum to do business, but 
a smaller number may adjourn from day to day, and compel the attendance 
of absent members in such manner and under such penalties as each house 
may prescribe. 

A quorum is a sufficient number to do business, and 
under this section such number is declared to be a majority 
of each house. The reason for such provision is very 
obvious when we remember that one of the chief principles 
of this government is that the majority rules. If a greater 
number were required to constitute a quorum, then the 
minority in many instances would be in a position to pre- 

[5:10] 


54 


CIVIIv CovKrnmknt 


vent or at least delay legislation; if a less number were 
required to constitute a quorum, then would an active 
minority be given too much power. But in order to guard 
against the possibility of a majority of the members of 
either house staying away, either through carelessness or 
intentionally, and thus efifectually block the wheels of leg¬ 
islation, the further provision that a minority may meet 
and adjourn from day to day, so as to keep up the organ¬ 
ization, and may compel the attendance of absent members 
under such penalties and in such manner as each house has 
previously provided, was inserted. This is done through 
the Sergeant-at-arms of each house, or in his absence 
through any other person whom it may appoint for that 
purpose. The penalty imposed upon absentees whose at¬ 
tendance is thus enforced, unless they are excused by the 
house to which they belong, is that they shall not be en¬ 
titled to any per diem during their absence and are liable 
for the expenses incurred in thus procuring their attend¬ 
ance. 


SECTION u. 

POWER TO PRESCRIBE RULES AND ENFORCE ORDER. 


Each house shall have the power to determine the rules of its proceed¬ 
ings, and punish its members or other persons for contempt or disorderly 
behavior in its presence; to protect its members against violence or offers 
of bribe or private solicitation, and with the concurrence of two-thirds, to 
expel a member, and shall have all other powers necessary for the Legisla¬ 
tive Assembly of a free state. 

A member expelled for corruption shall not thereafter be eligible to either 
house of the Legislative .Assembly; and punishment for contempt or disor¬ 
derly behavior shall not bar a criminal prosecution for the same offense. 

In order that the transaction of business might be ex¬ 
pedited to as great an extent as possible, it is necessary 
for each house of the Legislative Assembly to have certain 


[5:iT 



OI^ MONTANA. 


55 


rules prescribing the manner in which all proceedings and 
matters that might come before it shall be acted upon and 
disposed of. And as such rules regulate the proceedings 
of each house, it properly follows that it should have the 
power to make its own rules and to alter, change or amend 
them at any time. Therefore, each house is given the 
power by this section to determine the rules of its own 
proceedings. The rules of the Legislative Assembly of 
Montana, as are those of the Congress of the Linked States, 
as well as of the legislatures of the several states and the 
legislative bodies of most nations, are fashioned after the 
rules which gradually grew up in the practice of the par¬ 
liament of Great Britain, only such changes and departures 
being made therein as the circumstances demand. These 
rules are called parliamentary rules, and many of them are 
those which are adopted and used by societies and cor¬ 
porations of all sorts, as well as by all meetings of a public 
nature. 

And since each house of the Legislative Assembly has 
the power to determine the rules of its own proceedings, 
it necessarily follows that it should also have the power to 
enforce them and to punish all who disobey them. There¬ 
fore, each house, by virtue of this section, in addition to 
having the power to prescribe such rules, has also the 
power to punish all persons who violate them either by 
disturbing the proceedings or by committing \vhat is called 
'^contempt,’’ and this whether such persons are members 
of the Legislative Assembly or not. The power of the leg¬ 
islature to punish for contempt is inherent in it, and bears 
a striking resemblance to the power of the courts to do 
likewise. Thus, if one attempts to bribe a member of 
either house, or to coerce him by threats or otherwise into 
supporting or opposing any measure before the Assembly, 
he would be guilty of contempt, and liable to punishment 


17 


[5-- II] 


civit gov^rnme:nT 


56 

by the house for such. So is one who has been properly 
summoned to testify before a committee of the Assembly, 
but who refuses to do so, and this whether his testimony 
would criminate him or render him infamous or not, etc. 
But no testimony or document which a witness is com¬ 
pelled to give or produce before a legislative committee 
can ever be used in any criminal prosecution against him. 
Contempt or disorderly behavior are punishable by repri¬ 
mand, by fine or imprisonment, or both, and in some cases 
where members are the offenders, by expulsion. 

That each house may at all times retain its dignity and 
command the respect of the people, it is also given the 
power by this section to expel those of its members who 
are not respectable or who are unworthy. But in order 
that this power might not be abused for partisan purposes, 
the further provision that members of neither house shall 
be expelled except upon the concurrence of two-thirds of 
the members thereof was inserted. No member, however, 
who has been expelled for bribery or some other like offense 
can ever thereafter be a member of either house of the 
Legislative Assembly, but those expelled for other reasons, 
if otherwise qualified, may. No punishment for contempt 
or disorderly behavior by either house of the legislature 
is a bar to a criminal prosecution brought in the regular 
courts for the same offense. 

SECTION 12. 

RECORDS OF PROCEEDINCxS 

Each house shall keep a journal of its proceedings and may, in its dis¬ 
cretion, from time to time, publish the same, except such parts as require 
secrecy, and the ayes and noes on any question, shall at the request of any 
two members be entered on the journal. 

Each house is compelled to keep a journal of its pro¬ 
ceedings in order to afford a convenient and reliable means 


[5:12] 


O^' MONTANA. 


57 


of determining what business it has transacted and what 
bills and what resolutions or memorials it has passed. The 
contents of these journals may from time to time, in the 
discretion of each house, be published for the information 
of the people, except such parts thereof as the public wel¬ 
fare demands shall be kept secret. 

There are three ways of voting on matters before each 
House of the Assembly, as follows: By acclamation, by 
rising vote and by the “ayes and noes.” The first way 
is usually first resorted to and the general result determined 
by the presiding officer and entered on the journal. If the 
presiding officer is unable to determine how the measure 
went by means of the first way; however, he usually resorts 
to the second, in which event all members in favor of the 
measure first rise and are counted, after which all members 
opposed rise and are counted, and the general result 
entered on the journal. But at times it becomes advisable 
to have the manner in which each member voted, as well 
as the general result, preserved in the journal of his House, 
and thus make him careful how he casts his ballot, for he 
knows that the entire state, and his constituents especially, 
will find out how he voted when the journals are published, 
and often much sooner through the medium of the press. 
This result is brought about by the “aye and no” vote, 
which must be resorted to in either house if two members 
thereof request that such be the case. 

SECTION 13. 

PUBLICITY OF PROCFEDINGS 

The sessions of each house and of the committees of the whole shall be 
open unless the business is such as requires secrecy. 

Under this section all sessions of both houses of the 
Legislative Assembly, and also all sessions of the Legisla- 

[5:13] 


58 


CIVIL GOVERNMENT 


tive Assembly when it resolves itself into a committee of 
the whole, except when the public welfare demands that its 
proceedings be kept secret, shall at all times be open to the 
people. Any and all persons who choose to do so, if 
they behave themselves and are not infected with con¬ 
tagion, may attend such sessions and listen to and watch 
all the debates and other proceedings, and in addition the 
press may publish and scatter broadcast throughout the 
state and elsewhere reports of all that was said or done. In 
this manner the people at all times are enabled to keep a 
close watch on the actions and doings of their representa¬ 
tives, and the representatives themselves made to feel that 
they are in very truth the servants of the people. 

But in times of war or insurrection, and perhaps in sev¬ 
eral other cases, it may be extremely inimical to the public 
safety that the proceedings of either house be made known 
to the people. Under such circumstances it may if it sees 
fit sit “behind closed doors,’’ and refuse to at any time pub¬ 
lish its proceedings. It is very seldom that the House of 
Representatives does this, but the Senate in the transaction 
of its executive business often sits behind closed doors, in 
which case it is said to be in “executive session.” 

SECTION 14. 

ADJOURNMENT. 

Neither house shall, without the consent of the other, adjourn for more 
than three days, nor to any other place than that in which the two houses 
shall be sitting. 

This section is patterned after Article L, Section 5, 
Clause 4, of the United States Constitution, and was in¬ 
serted to accomplish the same end—the expedition of busi¬ 
ness. If it were otherwise, each house, by adjourning any 
length of time it pleased, or to another place, might 
effectually stop, or at least hinder, legislation. 

[5:14] 


MONTANA. 


59 


SECTION 15. 

PRIVILEGES OF LEGISLATORS. 


The members of the Legislative Assembly shall, in all cases, except trea¬ 
son, felony, violation of their oath of office and breach of the peace, be 
privileged from arrest during their attendance at the sessions of their respec¬ 
tive houses, and in going to and returning from the same; and for any speech 
or debate in either house they shall not be questioned in any other place. 

The purpose of that part of this section relative to free¬ 
dom from arrest of members during their attendance at the 
sessions of the Legislative Assembly, and in going to and 
returning from the same, is to enable the constituents of 
legislators not to be deprived of their voices and votes in 
the legislative halls for petty or frivolous reasons. But it 
is not necessary that members be sworn in before they 
are entitled to this privilege. If this were otherwise, some 
evil-minded person might cause their arrest as they were 
departing for the seat of government, and thus deprive the 
constituents of such members, for a time at least, of their 
proper and rightful representation. 

The purpose of the provision relative to freedom of 
speech and of debate was inserted, not for the purpose of 
shielding cowards, but for the purpose of encouraging well- 
meaning members in exposing fraud and iniquity, by pro¬ 
viding that they shall not be held to answer in damages or 
otherwise before a court of justice for anything they might 
say while in the performance of their official duties. 


[5:15] 


6o 


civil. governme:nt 


SECTION i6. 

POWER QF impeachment. 

The sole power of impeachment shall vest in the House of Representa¬ 
tives; the concurrence of a majority of all the members being necessary to 
the exercise thereof. Impeachment shall be tried by the Senate sitting for 
that purpose, and the Senators shall be upon oath or affirmation to do justice 
according to law and evidence. When the Governor or Lieutenant Governor 
is on trial, the Chief Justice of the Supreme Court shall preside. No person 
shall be convicted without a concurrence of two-thirds of the Senators elected. 

It at times becomes necessary to remove a civil officer, 
i. e., one holding an office or appointment under the execu¬ 
tive or judicial branches of the government of this state, 
because of misconduct, neglect, bribery, etc., from the posi¬ 
tion to which he was elected or appointed. To do this, 
with reference toThe removal of all state and judicial offi¬ 
cers, except justices of the peace, is called impeachment, 
and the manner of impeaching a state or judicial officer is 
as follows: The lower house of the Montana Legislative 
Assembly, by a majority vote, prefers a written charge 
against the officer it wishes to have removed, which it 
sends to the Senate, with instructions that the Senate try 
the same. The Senate then causes a summons to be served 
on such officer requiring him to appear before it on a cer¬ 
tain day and make answer to the charges preferred against 
him; whereupon the Senate resolves itself into a Court of 
Impeachment to try the charge. In conducting this trial, 
the House of Representatives, through certain members 
appointed for that purpose, acts in the capacity of prose¬ 
cuting attorney, the defendant being also permitted to 
appear by attorney, and the Senate acts in the capacity of 
both judge and jury. If after all the evidence has been 
heard for and against the accused, and the arguments of 
counsel made, the Senate, by the*concurrence of two-thirds 
of the whole number of Senators elected, votes to remove 
such officer, he must straightway be removed and his posi- 
[5:16] 


OS' MONTANA. 


6l 

tion declared vacant; but if at least two-thirds of the entire 
number of Senators elected do not concur in removing him, 
then he must be permitted to enjoy his office for the re¬ 
mainder of the term for which he was elected or appointed. 
The reason for requiring the concurrence of two-thirds of 
the Senators elected to remove a civil officer from office is 
to guard against the abuse of the power of impeachment 
for partisan purposes. 

The members of the Senate, when it is sitting as a Court 
of Impeachment, must be on oath or affirmation to judge 
the accused according to the law and the facts, in order 
that their sense of responsibility may be increased; and 
when the Governor or Lieutenant Governor is to be tried 
for impeachment, the Chief Justice of the Supreme Court 
must preside over the Senate. This latter is because, as the 
Lieutenant Governor is the presiding officer of the Senate, 
and is the only one who would benefit by the removal of 
the Governor, it would be manifestly unjust and a bid to 
fraud to allow him to preside over the Senate during the 
progress of an impeachment trial against himself or against 
the Governor. 

Thus far no impeachment trial has ever taken place be¬ 
fore the Senate of Montana. 

SECTION 17. 

WHO ARH LIABLR TO IMPEACHMENT. 

The Governor and other state and judicial officers, except justices of the 
peace, shall be liable to impeachment for high crimes and misdemeanors, or 
malfeasance in office, but judgment in such cases shall only extend to re¬ 
moval from office and dis(jualification to hold any office of profit, trust or 
honor under the laws of this state. The party, whether acquitted or convicted, 
shall, nevertheless, be liable to prosecution, trial, judgment and punishment 
according to law. 

This section simply repeats in effect what we said in com¬ 
menting upon the last section,—that all state and judicial 

[5:17] 


62 


CIVIIv GOVERNMENT 


officers, except justices of the peace, are subject to impeach¬ 
ment for bribery, malfeasance in office, etc. But all officers 
not liable to impeachment under this section, as we shall 
learn in considering the next succeeding one, may also be 
removed from office, though in a different manner. 

The fact that an officer has been tried by the Senate for 
an impeachable offense does not, however, bar his being 
tried and convicted in the regular courts for the same 
offense and punished according to law, and this whether 
he was removed from office by the Senate or not. 

SECTION i 8 . 

■REMOVAL OF OTHER OFFICERS. 

All ofificers not liable to impeachment shall be subject to removal for 
misconduct or malfeasance in office, in such manner as may be provided by 
law. 

We have seen that only state and judicial officers, with 
the exception of justices of the peace, can be impeached 
and removed, or removed and disqualified. But all other 
civil officers, such as district, county, township and muni¬ 
cipal officers, as well as justices of the peace, though they 
cannot be impeached, yet may be removed from office for 
misconduct or malfeasance in the manner following: The 
grand jury of the county in which such officer is elected 
or appointed prefers a written accusation against him, stat¬ 
ing in ordinary and concise language the offense with 
which he is charged. This accusation must be delivered 
by the foreman of the grand jury to the county attorney, 
unless he is the officer accused, who must forthwith cause 
a copy thereof to be served on the defendant, together 
with a written notice that he must appear before the District 
Court of such county in not less than ten days and answer 
the same, and then file the original accusation with the clerk 


L5:i8] 


OF MONTANA. 


63 


of the District Court. The defendant may then appear and 
answer the charge by denying the same, by objecting to its 
sufficiency, or by pleading guilty, or he may fail entirely to 
appear within the allotted time. If the latter is the case, 
the court may hear and determine the accusation in his 
absence. If he pleads guilty, however, judgment of conviction 
must be rendered against him, but if he denies the charge 
or appears and refuses to answer the accusation, then he 
must be tried by jury, which trial must be conducted in 
all respects similar to a criminal prosecution for a mis¬ 
demeanor, the concurrence of two-thirds of the entire jury 
being necessary to convict. If in any case the officer is 
convicted, he must be straightway removed from office; 
but such conviction is no bar to his being subsequently 
elected or appointed to some other office under this state; 
neither is it a bar to a criminal prosecution instituted in the 
regular courts for the same offense. 

When the county attorney is the person accused, the 
proceedings are the same as in other cases, except that the 
accusation is delivered to the clerk of the District Court 
directly by the foreman of the grand jury, and by him to 
the judge of the District Court of such county, who must 
cause the required copy and notice to be served on the 
county attorney, and appoint some one to act as prose¬ 
cuting officer in the matter. 

SECTION 19. 

HOW LAWS SHALL BE ENACTED. 

No law shall be passed except by bill, and no bill shall be so altered or 
amended on its passage through either house as to change its original pur¬ 
pose. 

The Legislative Assembly of Montana can pass no law 
except by bill. This is different from the Congress of the 
United States, which has the power to pass laws either by 

[5:19] 


64 


CIVIL GOVLRNMLNT 


bill or by joint resolution (United States Constitution, Art¬ 
icle L, section 7, clause 3), but in either case such bill or 
joint resolution, if it has the effect of law, must receive the 
President’s signature or passive approbation or be passed 
over his veto before it can become law. The Legislative 
Assembly may, however, pass joint resolutions proposing 
an amendment to the Constitution, or addressing a mem¬ 
orial to Congress, etc., as these do not have the effect of 
law, though they must be presented to the Governor, as 
in case of a bill. Either house, too, may pass any resolu¬ 
tion it desires, if such resolution merely expresses an opin¬ 
ion or prescribes rules for its own self-government. But 
resolutions of this character do not require the Governor’s 
signature. (See section 40, this Article.) 

Neither can either house of the Legislative Assembly so 
alter or amend a bill on its passage through it as to change 
its original purpose. If any alteration or amendment is 
made, it must be in entire harmony with the original pur¬ 
pose of the bill. This is to prevent confusion and delay. 


SECTION 20. 

STYLE OF ALL LAWS. 

The enacting clause of every law shall be as follows: “Be it enacted by 
the Legislative Assembly of the State of Montana.” 


The above section was inserted in order that uniformity 
in the form of the enacting clauses of all laws might be at¬ 
tained. It is of no special significance, and hence needs 
no further comment. 


[5: 20] 




OF MONTANA. 


65 


SECTION 21. 

WHFN BILLS SHOULD BL INTRODUCLD. 

No bill for the appropriation of money, except for the expenses of gov¬ 
ernment, shall be introduced within ten days of the close of the session, ex¬ 
cept by unanimous consent of the house in which it is sought to be intro¬ 
duced. 


The object of this section is to prevent an abuse very 
common in Congress and in the legislatures of many states, 
of reserving private and local appropriation bills, many of 
which are unworthy, to the last minute and then rushing 
them through with a whoop, thereby preventing their re¬ 
ceiving due consideration. 


SECTION 22. 

BILLS REQUIRLD TO BE PRINTED, ETC. 

No bill shall be considered or become a law unless referred to a com¬ 
mittee, returned therefrom and printed for the use of the members. 

In order to facilitate the passage of needed legislation 
and also to prevent the passage of that which is hasty or 
•rash, as well as for other purposes, it is almost the uni¬ 
versal rule of legislative bodies to divide themselves into 
committees, each committee having supervision over a cer¬ 
tain class of laws, to which proposed legislation is referred 
for consideration. Thus, in Montana, each house of the 
Legislative Assembly has a committee on judiciary, to 
which all bills relating to the procedure of the courts and 
other judicial matters are referred; a committee on mines 
and mining, to which proposed mining legislation is re¬ 
ferred ; a committee on private corporations, to which bills 

[5:21-22] 


66 


CIVIIv GOVKRNMKNT 


relative to their management, control or formation are 
referred, and so on. These committees, after examining 
the proposed bills submitted to them for consideration, re¬ 
port each to their respective houses recommending that 
the same be either passed or killed, and at the same time 
giving their reasons for such recommendations. Neither 
house is bound by these recommendations, but as they are 
generally common-sense deductions, it very seldom fails 
to follow them. Hence, the wisdom of the provision that 
no law shall be passed, or even considered by either house, 
unless it was first referred to a committee. 

The object of requiring that all bills returned from the 
committees shall be printed for the use of the members of 
the Legislative Assembly is to make them all familiar there¬ 
with, and to enable them to give the merits or demerits of 
such bills sufficient consideration, thus guarding against 
unconsidered legislation. 

SECTION 23. 

SUBJECT OF BILL SHALL BE EXPRESSED IN THE TITLE. 

No bill, except general appropriation bills, and bills for the codification 
and general revision of the laws, shall be passed containing more than one 
subiect which shall be clearly expressed in its title; but if any subject shall 
be embraced in any act which shall not be expressed in the title, suchj act 
shall be void only as to so much thereof as shall not be so expressed. 

This section is designed to prevent the passage of a 
vicious or objectionable measure under a title which does 
not call attention to the main object of the bill. Also, to 
prevent the slipping through of some private or local bill 
in connection with a worthy measure and on its merits, 
as well as to prevent the combining of several local or 
private schemes in one bill, for the purpose of thereby com¬ 
manding the votes of such members to all of them who 
would otherwise support only one or part of them. 

[5:23] 



Ol^ MONTANA. 


67 


SECTION 24. 

MAJORITY VOTR. 


No bill shall become a law except by a vote of a majority of all the 
members present in each house, nor unless on its final passage, the vote be 
taken by ayes and noes, and the names of those voting be entered on the 
journal. 

No bill can become a law in this state unless it receives 
the support of not less than a majority of the members of 
each house actually present, nor even then if on its final 
])assage the vote is not by ‘‘ayes and noes” and the manner 
in which each member present voted entered on the journal. 
This is in harmony with the theory that “the majoritv 
rules,” and is designed to make legislators exceedingly care¬ 
ful of how they vote. 


SECTION 25. 

MANNER OF AMENDMENT. 


No law shall be revised or amended, or the provisions thereof extended 
by reference to its title only, but so much thereof as is revised, amended or 
extended shall be re-enacted and published at length. 


This is to prevent confusion or mistake in the revision, 
amendment or extension of the laws. Under it no law can 
be revised, amended or extended, unless so much thereof 
as may be affected by such revision, amendment or exten¬ 
sion is re-enacted and published in entirety. 


[5: *24-25] 


68 


CIVIL GOVERNMENT 


SECTION 26. 

LOCAL OR SPECIAL LAWS FORBIDDEN. 

The Legislative Assembly shall not pass local or special laws in any of 
the following enumerated cases, that is to say: For granting divorces; laying 
out, opening, altering or working roads or highways; vacating roads, town 
plats, streets, alleys or public grounds; locating or changing county seats; 
regulating county or township affairs; regulating the practice in courts of 
justice; regulating the jurisdiction and duties of justices of the peace, police 
magistrates or constables; changing the rules of evidence in any trial or in¬ 
quiry; providing for changes of venue in civil or criminal cases; declaring 
any person of age; for limitation of civil actions, or giving effect to informal 
or invalid deeds; summoning or impaneling grand or petit juries; providing 
for the management of common schools; regulating the rate of interest on 
money; the opening or conducting of any election or designating the place 
of voting; the sale or mortgage of real estate belonging to minors or others 
under disability; chartering or licensing ferries or bridges or toll roads; 
chartering banks, insurance companies and loan and trust companies; remit¬ 
ting fines, penalties or forfeitures; creating, increasing or decreasing fees, 
percentages or allowances of public officers; changing the law of descent; 
granting to any corporation, association or individual the right to lay down 
railroad tracks, or any special or exclusive privilege, immunity or franchise 
whatever; for the punishment of crime; changing the names of persons or 
places; for the assessment or collection of taxes; affecting the estates of 
deceased persons, minors or others under legal disabilities; extending the time 
for the collection of taxes; refunding money paid into the state treasury, 
relinquishing or extinguishing in whole or in part the indebtedness, liability 
or obligation of anj' corporation or person to the state or to any municipal 
corporation therein; exempting property from taxation; restoring to citizen¬ 
ship persons convicted of infamous crimes; authorizing the creation, exten¬ 
sion or impairing of liens; creating offices, or prescribing the powers or du¬ 
ties of officers in counties, cities, township or school districts; or authorizing 
the adoption or legitimation of children. In all other cases where a general 
law can be made applicable, no special law shall be enacted. 

A Special laiv is one which relates to or binds only one 
or more persons or things of a whole class or order of 
persons or things within the jurisdiction of the law-making 
])ower. Thus, if the Legislative Assembly of Montana 
should pass a law allowing a certain person to ])rocnre a 
divorce on different testimony or by a different mode of 

[5: 26] 


MONTANA. 


69 


procedure than is required of all other applicants for divorce 
in this state, such law would be special, and therefore void. 

Experience has taught that as a general rule special 
legislation is followed by very dire results, for it more often 
takes frorn than adds to the welfare and happiness of a 
majority of the people. Then, too, the power to pass leg¬ 
islation special in its nature is liable to be abused in favor 
of the wealthy and influential and against the common 
people, the hope and pride of every land. Therefore, the 
reason for prohibiting the Legislative Assembly of Mon¬ 
tana from passing special legislation under any circum¬ 
stances with reference to the cases enumerated in this sec¬ 
tion, and in all other cases not specifically enumerated 
where a general law, i. e., one relating to or binding all 
within the jurisdiction of the law-making powerf can be 
made applicable is doubly apparent. 


SECTION 27. 

DUTY OF PRESIDING OFFICERS. ' 

The presiding officer of each house shall, in the presence of the house 
over which he presides, sign all bills and joint resolutions passed by the 
Legislative Assembly immediately after their titles have been publicly read, 
and the fact of signing shall be at once entered upon the journal. 

This simply means that when a bill has passed either 
house the presiding officer thereof must sign the same in 
its presence, and the fact of his doing so must be entered 
upon the journal. The purpose of this requirement is to 
guard against mistake or fraud, the signature of the pre¬ 
siding oflicer, coupled with the fact that he did sign it as 
entered upon the journal, being in effect a certificate that 
the bill is genuine and did actually pass the house over 
which he presides. 


[5:27] 


70 


CIVIIy GOVERNMENT 


SECTION 28. 

DUTIES, ETC, OF OTHER OFFICERS. 

The Legislative Assembly shall prescribe by law the number, duties and 
compensation of the ofificers and employes of each house; and no payment 
shall be made from the state treasury, or be in any way authorized to any 
such person, except to an acting officer or employe elected or appointed ac¬ 
cording to law. 

The officers of both houses are enumerated in connection 
with section 9 of this Article, and hence need not be again 
given here. Their duties are such as their titles would 
indicate, and their compensation ranges all the way from 
four dollars to ten dollars per day, during the sessions of 
their respective houses. 

SECTION 29. 

NO EXTRA COMPENSATION OF OFFICERS, ETC., ALLOWED. 

No bill shall be passed giving any extra compensation to any public officer, 
servant or employe, agent or contractor, after services shall have been ren¬ 
dered or contract made, nor providing for the payment of any claim made 
against the state without previous authority of law, except as may be otherwise 
provided herein. 


The object of this is to make public officers, contractors 
and others entirely independent of the Legislative Assem¬ 
bly, and to prevent fraud, by declaring that no bill shall be 
passed directing the payment of a claim out of the stat? 
treasury, except in certain cases, unless such claim was 
previously authorized to be incurred by law, and then only 
to the extent of the original agreement. Since such 
officers, etc., have now nothing to hope for in the way of 
an increase of salary or compensation, it naturally follows 
that they will be the more likely to render satisfactory ser¬ 
vices. 


MONTANA. 


71 


SECTION 30. 

STATE PRINTING, ETC. 

All stationery, printing, paper, fuel and lights used in the legislative and 
other departments of the government, shall be furnished, and the printing 
and binding and distribution of the laws, journals and department reports 
and other printing and binding, and the repairing and furnishing of all halls 
and rooms used for the meeting of the Legislative Assembly, and its com¬ 
mittees, shall be performed under contract, to be given to the lowest respon¬ 
sible bidder, below such maximum price and under such regulations as may 
be prescribed by law. No member or officer of any department of the gov¬ 
ernment shall be in any way interested in any such contract; and all such 
contracts shall be subject to the approval of the Governor and State Treas¬ 
urer. 

The purpose of this is to prevent frauds being perpetrated 
on or exorbitant charges being made the state in the mat¬ 
ter of the furnishing of its stationery, fuel, printing, lights, 
rents, etc. Under this section contracts for any of these 
purposes cannot be given as a reward for political services 
by the party in power, but must be given to such respon¬ 
sible person as will do or furnish what _ is required the 
cheapest, providing his bid is below the maximum price 
fixed by the Legislative Assembly. If it is above such 
maximum price, then his bid cannot be accepted even if 
it is the lowest, and a new call for bids must be made. This 
is designed to prevent a conspiracy to keep up the prices. 

Neither can any such contract be made with a firm, part¬ 
nership or corporation in which any member or officer of 
any of the departments of our state government is inter¬ 
ested, or with such member or officer personally. This 
is to prevent such contracts from being surrounded with 
sus])icion, and also to remove any incentive for corruption 
and fraud from the officers of the state and the represen¬ 
tatives of the people, by holding out to them the hope of 
no other remuneration for their services than that specifi¬ 
cally prescribed by law. 

18 


[5:30] 


72, 


CIVIIv GOVERNMENT 


SECTION 31. 

SALARIES OF FURLIC OFFICERS CANNOT P.E INCREASED OR 

DIMINISHED. 

Except as otherwise provided in this Constitution, no law shall extend 
the term of any public ofiicer, or increase or diminish hio salary or emolu¬ 
ment after his election or appointment; provided, that this shall not be con¬ 
strued to forbid the Legislative Assembly from fixing the salaries or emolu¬ 
ments of those officers first elected or appointed under this Constitution, 
where such salaries or emoluments are not fixed by this Constitution. 


This section was also inserted for the purpose of render¬ 
ing all the public officers of this state, of whatever depart¬ 
ment, entirely independent of the Legislative Assembly, by 
making their terms of office unextendible and by removing 
from them any hope of an increase or fear of a decrease 
of salary during their terms of office. But the Legislative 
Assembly may either increase or diminish the salaries of the 
successors of such officers, and diis whether they succeed 
themselves or are succeeded by others. And it may also 
fix the salaries of all such new officers as may from time 
to time be elected or appointed under this Constitution, if 
such salaries are not fixed by it, but when such salaries 
are once fixed they cannot be increased or diminished dur¬ 
ing the remainder of the terms of such officers. 

SECTION 32. 

WHERE REVENUE BILLS ORIGINATE. 

All bills for raising revenue shall originate in the House of Representa¬ 
tives; but the Senate may propose amendments, as in the case of other bills. 

This means that all bills for raising money for-defraying 
the expenses of carrying on the state government must 
be first introduced in the House of Representatives, on the 
theory that the Representatives, being nearer to the people 

[5:31-32] 


OF' MONTANA. 


73 


and representing them more directly than do the Senators 
who are supposed to represent the counties, will be in a 
better position to know for what governmental purposes 
money ought to be raised and yet keep the tax levy as low 
as possible, in order that the people who have to pay the 
taxes will not be over-burdened in this respect. 

But after a bill raising revenue has been introduced in 
the House of Representatives, the Senate may, and often 
does, propose amendments to the same, which may or may 
not be adopted by the House. All bills which do not relate 
to raising revenue, however, may originate in either house. 


SECTION 33. 

APPROPRIATION BILLS. 

The general appropriation bills shall embrace nothing but the appropria¬ 
tions for the ordinary expenses of the legislative, executive and judicial de¬ 
partments of the state, interest on the public debt and for public schools. 
All other appropriations shall be made by separate bills, each embracing but 
one subject. 

A general appropriation bill is one which directs the pay¬ 
ment of money out of the state treasury for the purpose 
of satisfying a large number of diversified claims against 
the state. This class of bills, experience has demonstrated, 
are apt to have a number of private or local appropriation 
schemes attached to them, unworthy in themselves and 
unable to be otherwise passed, which go through on the 
merits of the main features of the bill or slip through en¬ 
tirely unnoticed. Hence, in order to prevent such prac¬ 
tices in this state, the foregoing section was inserted. 
Under it no appropriation which is not strictly general in 
its nature can be included in the general appropriation bill. 
All others must be made by separate and distinct bills, each 
embracing but one subject. 


[5:33] 


74 


CIVIIv GOVERNMENT 


SECTION 34. 

PAYMENT OF MONEY OUT OF TREASURY. 

No money shall be paid out of the treasury except upon appropriations 
made by law, and on warrant drawn by the proper officer in pursuance thereof, 
except interest on the public debt. 

I 

Before any money can be paid out of the state treasury, 
with the exception of interest on the public debt, two things 
are necessary. The first of these is, that the Legislative 
Assembly must by bill authorize the payment of such 
money to the party having the claim; and second, after 
such authorization is made, such party must procure a 
warrant upon the State Treasurer from the proper officer, 
requiring him to pay over the amount appropriated. This 
was so provided in order to prevent the conducting of the 
people’s money by corrupt officials and others into channels 
for the reception of which it was never meant—in other 
words, in order to prevent the plundering of the state treas¬ 
ury by political henchmen and unscrupulous politicians for 
their own personal gain. Interest on the public debt is 
excepted for the reason that it can be easily and accurately 
calculated, and the State Treasurer or his bondsmen held 
responsible for an over-payment thereof. 

SECTION 35.. 

APPROPRIATIONS TO CORPORATIONS, ETC. 

No appropriation shall be made for charitable, industrial, educational or 
benevolent purposes to any person, corporation, or community not under the 
absolute control of the state, nor to any denominational or sectarian institu¬ 
tion or association. 

This, SO far as it relates to the appropriation of money 
for charitable, industrial, educational or benevolent pur¬ 
poses, was inserted to accomplish the same end as the last 


[5:34-351 


OI*' MONTANA. 


75 


preceding- section—the guarding against the squandering 
of the people’s money by either diverting it, or a part 
thereof, wholly or partially from the purpose for which it 
was originally appropriated or intended. 

In so far as it relates to denominational or sectarian in¬ 
stitutions or associations, the Legislative Assembly is for¬ 
bidden absolutely to appropriate any money to their use 
or benefit. The object of this is to guard against that 
worst, most bigoted and most narrow-minded jealousy 
known to man—sectarian or denominational jealousy. 

SECTION 36. 

DELTiGATION OF POWERS. 

The Legislative Assembly shall not delegate to any special commission, 
private corporation or association, any power to make, supervise or interfere 
with any municipal improvements, money, property or effects, v/hether held 
in trust or otherwise, or to levy taxes, or to perform any municipal functions 
whatever. 

An evil more or less common in many foreign nations 
is the delegation to private corporations or associations of 
powers which properly belong to and had ought to be 
exercised by the government itself, thereby in many in¬ 
stances infringing greatly upon the liberties of the people. 
Hence, in order to guard against anything of this sort, the 
foregoing section was inserted. 

SECTION 37. 

INVESTMENT OF TRUST FUNDS. 

No act of the Legislative Assembly shall authorize the investment of trust 
funds by executors, administrators, guardians or trustees in the bonds or 
stock of any private corporation. 

Executors, administrators, guardians and trustees are 
those who hold and manage property in trust for the heirs 
of deceased persons until a proper distribution can be made 

[5:36-37] 


76 


CIVIIy GOVERNMENT 


among them by the court, or the property of minors or 
others legally disqualified to act for themselves, etc. They 
are generally considered as officers of the court, and among 
other powers possessed by them, they have the power, 
subject to the approval of the court in certain cases, to 
invest the money in their possession and belonging to those 
for whom they legally act. But owing to the great un¬ 
certainty of the outcome of investments in the bonds or 
stocks or many private corporations or associations, this 
section which provides that no law shall be passed author¬ 
izing the investment of trust funds in such stocks or bonds 
was inserted. Therefore, as the law now stands, if a trus¬ 
tee or other person holding a similar capacity invests the 
money or property of his cestui que trust in bonds or stocks 
of a private corporation or association and a loss is thereby 
occasioned, he will be held personally responsible therefor. 


SECTION 38. 

STATE OR MUNICIPAL AID IN RAILROAD CONSTRUCTION. 


The Legislative Assembly shall have no power to pass any law authorizing 
the state, or any county in the state, to cont;ract any debt or obligation in 
the construction of any railroad, nor give or loan its credit to or in aid of 
the construction of the same. 


The purpose of this section is not to discourage the con¬ 
struction of railroads, but to protect this state and the coun¬ 
ties thereof from loss by putting a damper on the making of 
investments by them in aid of some new railroad project, 
which experience has proven turns out in about nine cases 
out of ten in a dismal and utter failure. 


[5:38] 


OF MONTANA. 


77 


SECTION 39. 

EXTINGUISHMENT OF OBLIGATIONS OWING TO THE STATE, 

ETC. 

No obligation or liability of any person, association or corporation held or 
owned by the state or any municipal corporation therein, shall ever be ex¬ 
changed, transferred, remittted, released or postponed, or in any way ex- 
tinguislied by the Legislative Assembly; nor shall such liability or obligation 
be extinguished, except by the payment thereof into the proper treasury. 

The foregoing’ means that the Legislative Assembly shall 
never, by bill or otherwise, pass any law or do any act the 
efiect of which would be to authorize the state or any 
county, township, city or school district tlierein to either 
exchange a debt or obligation owing to it by any person, 
corporation or association for one owing by it to such per¬ 
son, association or corporation, or to transfer the same, or 
to remit or release it, or to postpone its payment to a time 
later than that on which it becomes due and payable, or to 
in any way diminish the value thereof. The introduction 
of this section into the Constitution is also a result of the 
lessons taught us by the bitter experience of some of our 
older sisters in this connection_, and its purpose is to make 
the state and its municipal corporations entirely indepen¬ 
dent of their debtors by removing from such debtors all 
hope of ever, by bribery, threats or blandishments, extin¬ 
guishing their obligations or liabilities to the state or its 
municipalities, or in any way diminishing their value. 

The only possible way an obligation or liability due the 
state or one of the municipal corporations thereof can now 
be extinguished or canceled is by payment in full, and this 
whether the state or such municipality is itself indebted to 
the person, private corporation or association liable to it 
or not. But this does not mean that the state or its munici¬ 
palities will never pay their obligations or liabilities. It 
means simply that they will do so in their own time and in 
their own way. 


[5:39] 


78 


CIVIL GOVERNMENT 


SECTION 40. 

CONCURRENT RESOLUTIONS. 


Every ordei, resolution or vote, in which the concurrence of both houses' 
may be necessary, except on the question of adjournment, or relating solely 
to the transaction of the business of the two houses, shall be presented to the 
Governor, and before it shall take effect shall be approved by him, or, being 
disapproved, be repassed by two-thirds of both houses, as prescribed in the 
case of a bill. 


That is, every order or resolution which requires the 
concurrence of both houses of the Leg-islative Assembly, 
such as a resolution proposing an amendment to the Con¬ 
stitution or one offering a memorial to Congress, except 
those relating solely to the question of adjournment or to 
the transaction of business in which the two houses only 
are interested directly, shall, after its passage, be presented 
to the Governor for his approval or veto, but before it can 
go into effect it must be either approved by him, or, being 
disapproved, be repassed over his veto by the concurrence 
of two-thirds of the members of each house actually pres¬ 
ent. A resolution or order disapproved by the Governor 
must be returned by him to the house in which it orig¬ 
inated, together with the reasons for such disapproval. This 
is the same as in case of a bill (Article VII., Section 12), 
and the reason for it is to interpose a stay upon hasty reso¬ 
lutions or orders. 


[ 5 : 40 ] 


OF MONTANA. 


79 


SECTION 41. 

SOLICITATION OF BRIBERY AND BRIBERY BY LEGISLATORS. 

If any person elected to either house of the Legislative Assembly shall 
offer or promise to give his vote or influence in favor of or against any 
measure or proposition pending or proposed to be introduced into the Legis¬ 
lative Assembly, in consideration or upon condition that any other person 
elected to the same Legislative Assembly will give, or will promise or assent 
to give, his vote or influence, in laver of or against any other measure or 
proposition pending or proposed to be introduced into such Legislative As¬ 
sembly, the person making such offer cr promise shall be deemed guilty of 
solicitation of bribery. If any member of the Legislative Assembly shall give 
his vote or influence for or against any measure or proposition pending or 
proposed to be introduced in such Legislative Assembly, or offer, promise 
or assent so to, upon condition that any other member will give, or will 
promise or assent to give his vote or influence in favor of or against any 
other measure pending or proposed to be introduced in such Legislative As¬ 
sembly, he shall be deemed guilty of bribery, and any member of the Legis¬ 
lative Assembly, or person elected thereto, who shall be guilty of either such 
offenses, shall be expelled and shall not thereafter be eligible to the Legisla¬ 
tive Assembly, and on the conviction thereof in the civil courts, shall be liable 
to such further penalty as may be prescribed by law. 

This section specifically defines in what the offenses of 
bribery and solicitation of bribery, so far as they relate to 
the dealings of the members of the Legislative Assembly 
as between themselves, shall consist. It is designed to pre¬ 
vent to as great an extent as possible the passage of any 
legislation, or the failure to pass of any proposed legislation, 
except upon its merits or demerits. 

The punishment for bribery or solicitation of bribery by 
members of the Legislative Assembly, when found guilty, 
is expulsion and disqualification to ever again be a member 
thereof, and in addition, upon conviction thereof in the 
civil courts, imprisonment in the state penitentiary for not 
less than one year nor more than ten. Members of the 
Legislative Assembly may be convicted of bribery or solici¬ 
tation of bribery in the regular courts, even if they have 
not been found guilty thereof and expeUecl. by their respec¬ 
tive houses. 




8 o 


CIVIIv govb:rnme:nt 


SECTION 42. 

BRIBERY BY OTHERS. 

Any person who shall directly or indirectly offer, give or promise any 
money or thing of value, testimonial, privilege or personal advantage, to any 
executive or judicial officer or member of the Legislative Assembly, to influ¬ 
ence him in the performance of any of his official or public duties shall be 
deemed guilty of bribery, and be punished in such manner as shall be pro¬ 
vided by law. 

The foregoing states specifically in what the offense of 
bribery, so far as it relates to the dealings of others with 
the executive, judicial or legislative officers of this state, in 
their official or public capacity, shall consist. 

One convicted of bribing any of such officers is liable to 
imprisonment in the state penitentiary for not less than one 
nor more than ten years. 


SECTION 43. 

SOLICITATION OF BRIHERY BY PUBLIC OFFICERS AND OTHERS 

The offense of corrupt solicitation of members of the Legislative Assembly, 
or of public officers of the state, or of any municipal division thereof, and 
the occupation or practice of solicitation of such members or officers, to in¬ 
fluence their official action, shall be defined by law, and shall be punishable 
by fine and imprisonment. 

The Legislative Assembly has long since carried out the 
instructions given it by this section. It is now impossible 
for any person to corrupt or attempt to corrupt any execu¬ 
tive, judicial or legislative officer of this state or of any of 
the municipalities thereof, or for them to solicit corruption, 
or to actually be corrupted, without committing a felony 
under the laws of this state. 


[5' 42-43] 


OF MONTANA. 


8 l 


The usual punishment for the commission of any of these 
offenses is imprisonment in the state penitentiary for a 
period ranging from one to fourteen years, though in some 
cases fines may be imposed instead, and in still others the 
person convicted, in addition to being made suffer the 
common penal punishment, is also forever disqualified from 
holding any office under this state. 

SECTION 44. 

INTEREST OF MEMBERS IN PROPOSED LEGISLATION. 

A member who has a personal or private interest in any measure or bill 
proposed or pending before the Legislative Assembly shall disclose the fact 
to the house of which he is a member, and shall not vote thereon. 

That is, if any member of either house of the Legislative 
Assembly will be personally benefited, either financially or 
otherwise, by the passage of a eertain bill pending before 
it, he shall disclose that fact to his house and shall refrain 
from voting thereon. If he does neither of these, he is 
guilty of a misdemeanor. No law passed by the Legislative 
Assembly, however, in which any of its members were 
personally interested, but did not make known that fact or 
refrain from voting thereon, shall be. void for that reason, 
but shall be as valid as if such had not been the case. 

The reason for all this is self-evident. 

SECTION 45. 

VACANCIES. 

When vacancies occur in either house the Governor or the person exer¬ 
cising the functions of the Governor shall issue writs of election to fill the 
same. 

A vacancy may occur in the Legislative Assembly by 
death, by expulsion, by resignation, by mental or physical 
disability, or by the acceptance of a seat in Congress or a 

[5:44-45] 


82 


CIVIL GOVLRNMLNT 


civil office of this state or of the United States. When one 
occurs the Governor, or the Acting- Governor, who may be 
either the Lieutenant Governor, the President pro tcm. of 
the Senate or the Speaker of the House of Representatives, 
must by proclamation set a day for a new election to be 
held in the district or county where the vacancy occurred. 
The new member elected on that day holds office only for 
the unexpired term of his predecessor. 


ARTICLE VI. 

APPORTIONMENT AND REPRESENTATION. 
SECTION I. 

representation in congress. 

One representative in the Congress of the United States shall be elected 
from the state at large, the first Tuesday in October, 1889, and thereafter at 
such times and places, and in such manner as may be prescribed by law. 
When a new apportionment shall be made by Congress the Legislative As¬ 
sembly shall divide the state into congressional districts accordingly. 

Representatives in Congress are now elected on the first 
Tuesday after the first Monday in November of each even- 
numbered year, and the manner of doing so is by ballot. 
This is regulated by Congress (see United States Constitu¬ 
tion, Article I., Section 4, Clause i), and hence the state 
has no control over the matter. 

Congress from time to time apportions to each state the 
number of representatives it shall have therein (United 
States Constitution, Article I., Section 2, Clause 3), but 

[6:1] 



of' MONTANA. 


83 


whether the number of Congressmen each state is allowed 
to have shall be elected at large or by districts is a matter 
left entirely to its own fancy. This state has chosen to elect 
its Congressmen by districts, but as it is as yet allowed to 
have only one representative in Congress, the entire state 
of course constitutes but one congressional district. But 
should the Congress in making its next apportionment, or 
any apportionment subsequent thereto, authorize Montana 
to have more than one national representative, then it will 
become the duty of her Legislative Assembly to divide the 
state into as many congressional districts as she is allowed 
representatives in Congress. The only restriction on the 
Legislative Assembly in this respect is that it must form 
such districts out of compact and contiguous territory. 


SECTION 2. 

apportionmj:nt of state representatives. 

The Legislative Assembly shall provide by law for the enumeration of 
the inhabitants of the state in the year 1895 and every tenth year thereafter; 
and at the session next following such enumeration, and also at the session 
next following an enumeration made by the authority of the United States, 
shall revise and adjust the apportionm.ent of representatives on the basis of 
such enumeration according to ratios to be fixed by law. 

The process of enumerating the inhabitants of this state 
and of the United States is called taking the census. The 
census of the United States is taken during every year the 
number of which ends with zero, and the census of this 
state is taken during every year the number of which ends 
with five. Hence, under this section, the Legislative As¬ 
sembly of Montana is compelled to revise and readjust the 
apportionment of state representatives every five years. 
This is different tlian the apportionment for Congressmen, 

[6:21 


I 


84 


CIVIL GOVERNMENT 


which is made only every ten years, but the reason for 
requiring that an apportionment be made thus often for 
state representatives is that, as the state is rapidly being 
developed and settled, if it was not re-apportioned thus often 
parts of it would not be fairly and justly represented in the 
lower house of the Legislative Assembly. 

The seventh Legislative Assembly, which met on the first 
Monday of January, 1901, re-apportioned the state in such 
a manner as to give the eighth Legislative Assembly sixty- 
seven members in its lower house. 

SECTION 3. 

REPRESENTATIVE DISTRICTS. 

Representative districts may be altered from time to time as public con¬ 
venience may require. When a representative district shall be composed of 
two or more counties, they shall be contiguous and the districts as compact 
as may be. No county shall be divided in the formation of a representative 
district. 

Congress has the power to apportion to the several states 
the number of Representatives each shall have therein, but 
it has no power to define the districts from which such 
Representaives shall be chosen. This is different from that 
of the Legislative Assembly in this respect, which has the 
power to both apportion the number of state Representa¬ 
tives the lower house shall have and to define the district 
from which each one shall be chosen. The only restriction on 
the power of the Legislative Assembly in re-districting the 
state is that such districts, when composed of more than 
one county, must be made as compact as possible and out 
of counties contiguous and adjacent the one to the other, 
but no county must be divided in the formation thereof. 
The reason for this is to protect the people from a practice 
at one time common in some of the Eastern states, called 
“gerrymandering,’’ of dividing the state up into districts 

[6:3] 


OI^ MONTANA. 


85 


for Representatives, both state and national, in an unfair 
and unnatural way, with a view to giving the political party 
in power at the time such division as made an advantage 
over its opponent. 


SECTION 4. 

SICNATORIAL DISTRICTS. 

Whenever new counties are created, each of said counties shall be entitled 
to one Senator, but in no case shall a senatorial district consist of more than 
one county. 

As the law now stands, each county in existence and each 
county which may hereafter be created shall be entitled 
to no more and no less than one Senator in the upper house 
of the Legislative Assembly. But the Legislative Assem¬ 
bly may at any time authorize each county to elect more 
than one Senator, though no Senator can represent or 
be elected by more than one county. This is because, as 
Senators are in theory supposed to represent the counties, 
to allow one of them to represent more than one county 
would be to place him in the position of the man who tried 
to serve two masters. 

SECTIONS 5 AND 6. 

NUMBER AND FORMATION OF SENATORIAI, AND REPRESENTA¬ 
TIVE DISTRICTS. 

These sections simply define the number of Senators and 
Representatives each county in existence at the time of 
the formation of this Constitution should have in the first 
Legislative Assembly, and section 5 also numbcTS the sen¬ 
atorial districts and states of what county each shall be 
constituted. At the present time these sections are of little 
or no practical value, so far as the student is concerned, 
and hence are omitted. 


[6:4-5-6] 


86 


CIVIIv GOVERNMENT 


ARTICLE . VII. 

EXECUTIVE DEPARTMENT. 

SECTION I. 

OF WHAT THE EXECUTIVE DEPARTMENT SHAEL CONSIST. 


The Executive Department shall consist of a Governor, Eieutenant Gov¬ 
ernor, Secretary of State, Attorney General, State Treasurer, State Auditor 
and Superintendent of Public Instruction, each of whom shall hold his office 
for four years, or until his successor is elected and qualified, beginning on 
the first Monday of January next succeeding his election, except that the 
terms of office of those who are elected at the first election, shall begin when 
the state shall be admitted into the X. nion, and shall end on the first Monday 
of January, A. D. 1893. The officers of the executive department, excepting 
the T.ieutenant Governor, shall during their terms of office reside at the seat 
of government, where thej”^ shall keep the public records, books and papers. 
They shall perform such duties as are prescribed in this Constitution and 
by the laws of the state. The State Treasurer shall not be eligible to his 
office for the succeeding term. 

The Executive Department of this state consists of a 
Governor, a Lieutenant Governor, a Secretary of State, an 
Attorney General, a State Treasurer, a State Auditor and 
a Superintendent of Public Instruction. The terms of all 
of these officers now begin on the first' Monday of Jan¬ 
uary in the year next succeeding the year the number of 
which is divisible by four, and continue for four years, or 
until their successors are elected and qualified. That is, 
the state executive officers who were elected on the first 
Tuesday after the first Monday in November, 1900, and 
took their seats on the first Monday of January, 1901, will 
hold their respective offices until the first Monday of 
January, 1905, unless they become deceased, or resign or 
are otherwise disqualified prior to that time; and they 
may even hold and enjoy their respective offices after sucli 


OP MONTANA. 


87 


date if their successors were not elected, or were elected 
but failed to qualify on or before the first Monday of Jan¬ 
uary, 1905. They can do this, however, only so long as 
the disabilities continue. When they are removed by the 
election and qualification of their successors, they must at 
once vacate in favor of such successors. 

All of the executive officers of this state must reside at 
the seat of government, which is at the city of Helena, 
except the Lieutenant Governor, and must there keep the 
public records, books and papers which necessarily accom¬ 
pany their respective offices. But although the Lieutenant 
Governor need not as a general rule reside at the seat of 
government, yet when because of the death, resignation or 
disqualification of his chief he is called upon to fill the 
Governor’s office, he must take up his residence there. 
This is so provided for the sake of convenience, as it would 
manifestly be very inconvenient and unsatisfactory if the 
executive officers of this state resided or kept the records 
of their offices at different places. 

Briefly speaking, the duties of the executive officers are 
as follows: 

Of the = Governor, to execute the laws of this state; 

Of the Lieutenant Governor, to preside over the Senate 
and to fill the office of Governor whenever, because of any 
reason, it becomes vacant; 

Of the Secretary of State, to keep all the records of the 
Legislative and Executive Departments of this state, also its 
Constitution and the great seal thereof, and to lay such 
records and all matters relating thereto before either Rouse 
of the Legislative Assembly when called upon to do so; 

Of the Attorney General, to be the state’s lawyer; 

Of the State Treasurer, to keep the money and accounts 
of the state; 


[7: i] 


19 


88 


CIVIIv GOVERNMKNT 


Of the State Auditor, to superintend generally the fiscal 
concerns of the state and to examine and audit all claims 
against the same; 

Of the Superintendent of Public Instruction, to superin¬ 
tend generally the public schools of the state. 

Besides these, there are also a large number of executive 
officers appointed by the Governor, the titles and duties 
of the most important of which are, briefly, as follows: 

Private secretary of the Governor, whose duty is to act 
in the capacity of secretary to the chief executive; 

State Land Agent, whose duty is to keep a general su¬ 
pervision over the public lands belonging to the state; 

State Examiner, whose duty it is to examine the books 
and accounts of many of the state executive and judicial 
officers, as well as those of the executive officers of the 
different counties and of public institutions, etc.; 

State Game Warden, whose duty it is to supervise gen¬ 
erally the execution of the state game laws; 

State Inspector of Boilers, whose duty it is to have charge 
over the inspection of steam boilers; 

State Mine Inspector, whose duty is to supervise generally 
the condition of mines and underground workings; 

Adjutant-general, whose duty is to take charge of the 
state militia, subject to the orders of the Governor; 

State Veterinary Surgeon, whose duty is to have general 
charge over the condition of cattle, horses, sheep, etc. 

And in addition to these there are a large number of 
executive boards, the titles of many of which are as fol¬ 
lows : 

State Board of Equalization; State Board of Pardons; 
State Board of Prison Commissioners; State Board of Com¬ 
missioners for the Insane; State Board of Examiners; State 
Board of Land Commissioners; State Board of Stock Com¬ 
missioners ; State Board of Medical Examiners; State Board 


MONTANA. 


89 


of Dental Examiners; State Board of Pharmacy; State 
Board of Osteopathy Examiners; State Board of Charities 
and Reform; State Bureau of Agriculture, Labor and In¬ 
dustry ; State Board of Education. The duties of most of 
these boards are indicated by their titles, so space will not be 
taken to enumerate them. 

Although these various officers and boards all perform 
certain executive functions, yet the student must not lose 
sight of the fact that in the Governor alone is vested the 
supreme executive authority, all of them being to a more 
or less degree amenable to him and subject to his control, 
either directly or indirectly. 

i 

SECTION 2. 

MANNER OF ERECTING EXECUTIVE OFFICERS. 

The officers provided for in section 1 of this Article, shall be elected by 
the qualified electors of th6 state at the time and place of voting for members 
of the Legislative Assembly, and the persons respectively, having the highest 
number of votes for the office voted for shall be elected; but if two or more 
shall have an equal and the highest number of votes for any of said offices, 
the two houses of the Legislative Assembly, at its next regular session, shall 
forthwith by joint ballot, elect one of such persons to said office. The re¬ 
turns of election for the officers named in section i shall be made in such 
manner as may be prescribed by law, and all contested elections of the same, 
other than provided for in this section, shall be determined as may be pre¬ 
scribed by law. 

All executive officers mentioned in the last section, to- 
wit, the Governor, Lieutenant Governor, Secretary of State, 
Attorney General, State Auditor, State Treasurer and Su¬ 
perintendent of Public Instruction, are elected by the qual¬ 
ified electors of this state; that is, by those who are given 
the right to vote under the laws of Montana. All other 
executive officers, whether members of boards or other¬ 
wise, are appointed by the Governor by and with the advice 
and consent of the Senate, except clerks, assistants, etc., 
who are generally appointed by those under whom they 

[7: 2] 


90 


CIVIIy GOVERNMENT 


immediately serve. The date on which these executive 
officers are elected is the same as that on which presiden¬ 
tial electors are chosen—the first Tuesday after the first 
Monday in November of every year the number of which 
is divisible by four. 

In order to be elected to any of these executive offices 
it is not necessary for one to receive a majority of all the 
votes cast for such office, but it is sufficient if he receives 
the highest number of votes of any of the candidates legally 
nominated for such office—in other words, this section 
provides that a plurality elects. This is the case with all 
elective executive, judicial, legislative, county, city, town 
and township officers, as well as with Representatives in 
the lower house of Congress. If the rule was otherwise,— 
that a majority only can elect,—then by multiplying the 
candidates for any office indefinitely it would be possible 
in almost every instance to defeat the election of any officer 
directly by the people, and thus very much inconvenience 
the carrying on of the affairs of government, if not throw 
them into almost hopeless confusion. But it might at 
times happen that the two or more highest candidates on 
the list, even under the plurality rule, might receive an 
equal number of votes, though this is barely probable. 
However, should such an emergency arise, then it becomes 
the duty of the Legislative Assembly, immediately after 
it convenes and organizes, to meet in joint session and 
decide between the two or more candidates who received 
an equal and the highest number of votes. If it fails to 
do this on the first ballot, it must continue balloting until 
one or the other of the candidates is chosen. 

Contested elections other than such as are provided for 
in this section are usually determined by tire courts, except 
contests for seats in either house of the Legislative As¬ 
sembly, which is determined by such house itself. 


[7:21 


OF' MONTANA. 


91 


SECTION 3. 

ELIGIBILITY OF EXECUTIVE OFFICERS. 

No person shall be eligible to the office of Governor, Lieutenant Governor, 
or Superintendent of Public Instruction, unless he shall have attained the 
age of thirty years at the time of his election, nor to the office of Secretary 
of State, State Auditor, or State Treasurer, unless he shall have attained the 
age of twenty-five years, nor to the office of Attorney General unless he shall 
have attained the age of thirty years, and have been admitted to practice in 
the Supreme Court of the state, or territory, of Montana, and be in good 
standing at the time of his election. In addition to the qualifications above 
prescribed, each of the officers named shall be a citizen of the United States 
and have resided in the state or territory two years next preceding his elec¬ 
tion. 

Under this section no person can at the present time be 
Governor or Lieutenant Governor or Superintendent of 
Public Instruction of this state, unless he is at least thirty 
years of age, a citizen of the United States and a resident 
of Montana for at least two years immediately preceding 
his election; nor can he be Attorney General unless he 
has the above qualifications, and in addition is a member 
of the bar of this state in good standing at the time of his 
election; nor can he be Secretary of State or State Auditor 
or State Treasurer, unless he is at least twenty-five years 
of age, and has the qualifications of the other executive 
officers herein enumerated with reference to citizenship and 
residence. The purpose of all this is to make all these 
officers of an age not less than the importance of their 
respective offices would suggest should be the lowest limit, 
and to make them all familiar with our state and national 
institutions, as well as directly interested in the future wel¬ 
fare of the state. The additional requirements for Attorney 
General are, of course, natural and necessary, as the duties 
of that office are such that they could not be performed 
by any person not a member of the bar of this state. 

[7:3] 


92 


civiiv gove:rnmknt 


SECTION 4. 

SALARIES OF EXECUTIVE OFFICERS. 

Until otherwise provided l)y law, the Governor, Secretary of State, State 
Auditor, Treasurer, Attorney General and Superintendent of Public Instruc¬ 
tion, shall quarterly as due, during their continuance in office, receive for 
their services compensation, which is fixed as follows: Governor, five thou¬ 
sand dollars per annum; Secre,tary of State, three thousand dollars per an¬ 
num; Attorney General, three thousand dollars per annum; State Treasurer, 
three thousand dollars per annum; State Auditor, three thousand dollars per 
annum; Superintendent of Public Instruction, two thousand five hundred 
dollars per annum. The Lieutenant Governor shall receive the same per diem 
as may be prescribed by law, for the Speaker of the Legislative Assembly, to 
be allowed only during the sessions of the I^egislative Assembly. 

The compensation enumerated shall be in full for all services by said 
officers respectively rendered in any official capacity or employment whatever 
during their respective terms of office. No officer named in this section shall 
receive, for the performance of any official duty, any fee for his own use, but 
all fees fixed by law for the performance by any officer of any official dut};, 
shall be collected in advance, and deposited with the State Treasurer quarterly 
to the credit of the state. No officer mentioned in this section shall be eligi¬ 
ble to or hold any other public office, except member of the State Hoard of 
Education during his term of office. 

The salaries of all of these officers have not been changed 
by law, and hence are the same as prescribed in this sec¬ 
tion. The compensation of the Lieutenant Governor, when 
he is not acting as Governor, is ten dollars per day during 
the sessions of the Legislative Assembly, and twenty cents 
per mile in going from and returning to his place of resi¬ 
dence from the seat of government. When he acts as 
Governor, he receives the same salary as does the chief 
executive. 

The salaries herein prescribed for each of said officers 
is in full of all duties he now performs or which may here¬ 
after devolve upon him by law. If the law prescribes that 
he shall collect any fee for the rendition of certain services, 
these must be turned in to the credit of the state at the 
end of every quarter. 


[7:4] 


OI^ MONTANA. 


93 


SECTION 5. 

e:xecutive power vested in governor. 


The supreme executive power of the state shall be vested in the Gov¬ 
ernor, who shall see that the laws are faithfully executed. 


Thus, we see that the supreme executive power of this 
state is vested in one man—the Governor. This does not 
mean that the Governor must perform all executive func¬ 
tions pertaining to the state directly, for such would be 
quite impossible. It does mean, however, that all other 
officers and boards whose duty it is to perform certain pre¬ 
scribed executive functions in this state are and shall be, 
to a greater or less degree, directly or indirectly answerable 
to him and subject to his direction. 

The reason for this is that experience has proven beyond 
the shadow of a doubt that where one man is charged with 
the entire executive responsibility of a state, the laws are 
much more efficiently and speedily carried into effect than 
where such responsibility rests on two or more. Where 
the latter is the case, there is always bound to be more or 
less jealousy, dissatisfaction and delay, while what is needed 
in carrying out the laws is the concentrated energy, force 
and decision of a single will. When a law is to be made, 
it can be framed the most beneficently by the combined 
wisdom of many, but the rule is very different when it 
comes to enforcing such law. 


[7:5] 


94 


CIVIIy GOVERNMENT 


SECTION 6. 

GOVERNOR TO BE COMMANDER-IN-CHIEF. 

The Governor shall be commander-in chief of the militia forces of the 
state, except when these forces are in the actual service of the United States, 
and shall have power to call out any part or the whole of said forces to aid 
in the execution of the laws, to suppress insurrection or to repel invasion. 

As the chief executive officer of this state, whose duty it 
is at all times to enforce the laws and protect the people 
from insurrection or invasion, it naturally follows that the 
Governor should be commander-in-chief of the state militia 
forces, except when they are in the actual service of the 
United States, in which event the President is their com- 
mandU-in-chief. 

The state military forces consist, in time of peace, of 
such volunteer companies as may be organized under her 
military laws. In time of war, in addition to these, the 
state military forces consist of the volunteer and drafted 
soldiers raised to carry on the same. But as soon as the 
volunteer and drafted soldiers, as well as the regular 
militia, pass into the service of the United States, their 
commander-in-chief becomes the President, instead of the 
Governor, although their company and regimental officers, 
when under the control of either the President or the Gov¬ 
ernor, are appointed by the latter. 


SECTION 7. 

APPOINTIVE POWER OF GOVERNOR. 

The Governor shall nominate, and by and with the consent of the Sen¬ 
ate, appoint all officers w'hose offices are established by this Constitution, or 
which may be created by law, and whose appointment or election is not 
otherwise provided for. If during a recess of the Senate a vacancy occurs 


[7:6-7] 


MONTANA. 


95 


in any such office, the Governor shall appoint some fit person to discharge 
the duties thereof until the next meeting of the Senate, when he shall nomi¬ 
nate some person to fill such office. If the office of Secretary of State, State 
Auditor, State Treasurer, Attorney General, or Superintendent of Public In¬ 
struction shall be vacated by death, resignation or otherwise, it shall be the 
duty of the Governor to fill the same by appointment, and the appointee shall 
hold his office until his successor shall be elected and qualified. 

This power of the Governor to nominate, and if the Sen¬ 
ate concurs in his nomination, to appoint all civil officers 
of this state whose election or appointment is not otherwise 
provided for, is very similar to the power of the President 
to do likewise under Article II., section 2, clause 2, of the 
United States Constitution. The manner of doing this is 
by the Governor sending to the Senate, in writing, the 
nomination of a certain person whom he desires to apf)oint 
to a designated office. If the Senate, by a majority vote, 
decides that such nomination is meritorious and that the 
nominee should be appointed, it authorizes the Governor 
to do so. This is done by giving to such appointed officer 
a commission, signed by the Governor and attested to by 
the Secretary of State by affixing thereto the great seal of 
Montana. 

But it often happens that a vacancy in one of these 
appointive offices occurs during a recess of the Senate. In 
such case it would be both inconvenient and costly to 
convene the Senate in special session for the purpose of 
confirming a nomination to fill such vacancy, and to leave 
the office unoccupied might result in much hindrance, delay 
or confusion in carrying on the business of government. 
Hence, in such cases the Governor is given the power to 
appoint some person to fill the vacancy, which person holds 
office until the next session of the Senate, at which time 
the Governor must nominate some person to fill the same 
as in case the vacancy had occurred while the Senate was 
in session. But in all cases where the Senate refuses to 


[7:7] 


96 


civil. gove:rnme:nt 


confirm the nomination made by the Governor, the nom¬ 
inee cannot be commissioned, and the Governor must 
continue nominating some other party, until he selects one 
whom the Senate is willing to confirm. 

If the office of Secretary of State, or of State Treasurer 
or of Attorney General, or of State Auditor, or of Super¬ 
intendent of Public Instruction becomes vacant, the Gov¬ 
ernor has the power to fill the same directly by appoint¬ 
ment, without the confirmation of the Senate, and this 
whether it is in session at the time the vacancy occurs or 
not. Such appointee holds office until his successor is 
elected and qualified. 

Since the Governor has the power to appoint, it neces¬ 
sarily follows that he can at any time remove those whom 
he has the unlimited power to appoint. 


SECTION 8. 

STATE EXAMINER. 

The Legislative Assembly shall provide for a State Examiner, who shall 
be appointed by the Governor and confirmed by the Senate. His duty shall 
be to examine the accounts of State Treasurer, supreme court clerks, district 
court clerks, and all county treasurers and treasurers of such other public in¬ 
stitutions as may be prescribed by law, and he shall perform such other du¬ 
ties as the Legislative Assemblj'^ may prescribe. He shall report at least once a 
year and oftener if required to such officers as may be designated by the 
I<egislative Assembly. His compensation shall be fixed by law. 

The Legislative Assembly has long since carried out the 
instruction given it by this section, and has prescribed that 
the State Examiner thus appointed shall, in addition to per¬ 
forming the duties required of him by this section, also 
examine the books and accounts of the Secretary of State, 
State Auditor, Attorney General, Superintendent of Public 
Instruction, county attorneys, county assessors, county 

[7:8] 


OF MONTANA. 


97 


clerks, county auditors, county superintendents of common 
schools, sheriffs, public administrators, coroners, county 
surveyors, and boards of county commissioners of each 
county; and also examine the accounts and books of all 
public institutions, as well as those of all banks, banking- 
corporations and saving’s banks,^ and investment and loan 
companies, incorporated under the laws of this state. 

The salary of the State Examiner is three thousand dol¬ 
lars per annum, and he must report the result of his exam¬ 
inations to the Governor on the first Monday of May and 
the first IMonday of November, in each year, and also the 
result of his examinations upon any particular officer at any 
time when such report is required 1)y the Governor. 

The purpose of all this is to prevent to as great an extent 
as possible the misappropriation of the people’s money by 
state and county officers. 


SECTION 9. 

I’ARDONING POWER. 


The Governor shall have the power to grant pardons, absolute or condi¬ 
tional. and to remit fines and forfeitures, and to grant commutation of pun¬ 
ishments and respites after conviction and judgment for any offenses com¬ 
mitted against the criminal laws of this state; provided, hoivcver, that before 
granting pardons, remitting fines and forfeitures, or commuting punishments, 
the action of the Governor concerning the same shall be approved by a 
board, or a majority thereof, composed of the Secretary of State, Attorney 
General and State Auditor, who shall be known as the Board of Pardons. The 
I.egislative Assenibly shall by law prescribe the sessions of said board, and 
regulate the proceedings thereof. But no fine or forfeiture shall be remitted, 
and no commutation of pardon granted, except upon the approval of a ma¬ 
jority of said board after a hearing in open session and until notice of the 
time and place of such hearing, and of the relief sought, shall have been 
given in some newspaper of general circulation in the county where the 


[7:9] 


98 


civil, GOV^RNMEJNT 


crime was committed, at least once a week for two weeks. The proceedings 
and decisions of the board shall be reduced to writing, and with their rea¬ 
sons for their action in each case, and the dissent of any member who may 
disagree, signed by them and filed, with all papers used upon the hearing, 
in the office of the Secretary of State. The Governor shall communicate to 
the Legislative Assembly, at each regular session, each case of remission of 
fine or forfeiture, reprieve, commutation or pardon, granted since the last 
previous report, stating the name of the convict, the crime of which he was 
convicted, the sentence and its date, and the date or remission, commuta¬ 
tion, pardon or reprieve, with the reasons for granting the same and the ob¬ 
jections, if any, of any member of the board made thereto. 

A pardon is the exemption of an individual from the pun¬ 
ishment the law inflicts for a crime he has committed, and 
of which he has been convicted and sentenced. A criminal 
who is pardoned is thereby restored to his civil rights (See 
Article IX., Section 2). Hence, it is usually the custom 
of the pardoning power to pardon a criminal shortly prior 
to the expiration of his sentence. A remission of fines and 
forfeitures is very similar to a pardon, the only difference 
being that the latter exempts a person convicted of crime 
from suffering punishment by confinement and hard labor 
in the state penitentiary, while the former exempts a person 
convicted of crime from suffering punishment by the impo¬ 
sition of a fine or forfeiture. A commutation of a sentence is 
to make it less severe than it originally was. A respite or 
reprieve is a temporary stay in the execution of a sentence 
in capital cases. 

It will be noticed that the power of the Governor of this 
state to grant pardons, etc., is very much limited by the 
interposition of the Board of Pardons, and otherwise; 
whereas, that of the President and of the Governors of most 
of the states is almost unlimited. The reason for this is to 
prevent the abuse of this remarkable power. 

Pardons, reprieves, commutations and remissions may 
be granted for all offenses committed against the criminal 
laws of this state, including treason, but this can be done 
only after trial and conviction. 

[7:9] 


MONTANA. 


99 


SECTION 10. 

SOME DUTIES AND SOLE POWERS OF THE GOVERNOR. 

The Governor may require information in writing from the officers of 
the Executive Department upon any subject relating to the duties of their 
respective offices, which information shall be given upon oath when so re¬ 
quired; he may also require inform.ation in writing, at any time, under oath, 
from all officers and managers of state institutions, upon any subject relating 
to the condition, management and expenses of their respective offices and in¬ 
stitutions, and may, at any time he deems it necessary, appoint a committee 
to investigate and report to him upon the condition of any executive office 
or state institution. The Governor shall, at the beginning of each session, 
and from time to lime by message, give to the Legislative Assembly informa¬ 
tion of the conditions of the state, and shall recommend such measures as he 
shall deem expedient. PTe shall also send to the Legislative Assembly a 
statement with vouchers of the expenditures of all moneys belonging to the 
state and paid out by him. He shall also, at the beginning of each session, 
present estimates of the amount of money required to be raised by taxation 
for all purposes of the state. 


The power of the Governor to require the executive offi¬ 
cers of this state to give him information in writing upon 
any suliject relating to the duties of their respective offices, 
is very similar to the power of the President to require a 
similar report from his cabinet officers and others, with the 
exception that the Governor may require that such in¬ 
formation be given upon oath, while the President cannot. 
And in addition, the Governor may require that information 
in writing, and upon oath, be given him at any time by the 
officers of state institutions, such as the insane asylum, etc., 
upon any subject relating to the condition, manage¬ 
ment and expenses of their respective offices and institu¬ 
tions ; and if he is not satisfied with the information given 
in this manner, he may appoint a committee to investigate 
and report to him upon the condition of any executive 
office or state institution. This is so provided in order that 
the chief executive, who is personally responsible for the 

[7:10] 


lOO 


civil, GOVKRNMI^NT 


enforcement of the laws, may be continually in touch with 
those who are elected or appointed to assist him in this 
respect, and also to enable him to be in a position to de¬ 
termine whether or not these assistants do their duty well. 

Like the President, it is the duty of the Governor at the 
beginning of each session of the Legislative Assembly, and 
from time to time during its continuance, to send his mes¬ 
sage to it, giving a general account of the condition of the 
state and the doings of the Executive Department since the 
sending of the last message, as well as suggesting or rec¬ 
ommending the passage of such measures as he may think 
needful; and it is also incumbent upon him, at the begin¬ 
ning of each session, to give his estimates of the amount 
of money required to be raised by taxation during each 
of the two succeeding fiscal years for the purpose of de¬ 
fraying the expenses of carrying on the state government, 
and besides present to the Legislative Assembly a state¬ 
ment with vouchers of the expenditures of all moneys be¬ 
longing to the state and paid out by him. But the Legis¬ 
lative Assembly in no case need follow his suggestions or 
recommendations unless it sees fit to* do so. 

SECTION II. 

rOWICR TO CALL SPECIAL SKSSIONS. 

lie may on extraordinary occasions convene the Legislature by proclama¬ 
tion, stating the purposes for which it is convened, but when so convened, 
it shall not have the power to legislate on any subjects other than those speci¬ 
fied in the proclamation, or which may be recommended by the Governor, 
but may provide for the expenses of the session and other matters incidental 
thereto. He may also, by proclamation, convene the Senate in extraordinary 
session for the transaction of executive business. 


The Legislative Assembly of this state meets in regular 
session but once in every two years. During the interim, 
however, some extraordinary occasion might arise, to deal 
[7:ii] 


MONTANA. 


lOI 


with which its action is needed at once and cannot be put 
off until the next regular session. When this is the case, 
the Governor has the power to' convene the Legislative 
Assembly in what is called “special session.” This is done 
by means of a proclamation issued by the Governor and 
published in the various papers of the state. But the Legis¬ 
lative Assembly when thus convened in special session can 
only legislate on such subjects as were mentioned in the 
Governor’s proclamation as the reason for calling such 
special session, and such other subjects as may be recom¬ 
mended to its consideration by the Governor, though it 
may provide for the defraying of the expenses of the session 
and other matters incidental thereto without the Governor’s 
recommendation. The Legislative Assembly' need not, 
however, take any action on any of the subjects for the 
consideration of which it was convened in special session, 
or which may be recommended to it after it is thus con¬ 
vened, though such conduct would be extraordinary, to say 
the least. 


SECTION 12. 

now 13ILTS BECOME LAWS. 

Every bill passed by the Legislative Assembly shall, before it becomes a 
law, be presented to the Governor. If he approve, he shall sign it, and 
thereupon it shall become a law, but if he do not approve, he shall return it 
with his objections to the house in which it originated, which house shall 
enter the objections at large upon its journal and proceed to reconsider the 
bill. If then two-thirds of the members present agree to pass the same, it shall 
be sent, together with the objections, to the other house, by which it shall 
likewise be considered, and if approved by two-thirds of the members present 
in that house it shall become a law notwithstanding the objections of the 
Governor. In all such cases the vote of each house shall be determined by 
yeas and nays, to be entered on the journal. If any bill shall not be returned 
by the Governor within five days (Sundays excepted) after it shall have been 
presented to him, the same shall be a law, in like manner as if he had signed 

[7: 12] 


102 


Civil, GOVERNMENT 


it, unless the legislature shall, by their adjournment, prevent its return, in 
which case it shall not become a law, without the approval of the Governor. 
Na bill shall become a law after the final adjournment of the Legislative As¬ 
sembly, unless approved by the Governor within fifteen days after such ad¬ 
journment. In case the Governor shall fail to approve of any bill after the 
final adjournment of the Legislative Assembly it shall be filed, with his ob¬ 
jections, in the office of the Secretary of State. 


A bill may become a law in three ways, as follows: First, 
it may pass both houses of the Legislative Assembly by a 
majority vote and be signed by the Governor within the 
required time; second, it may pass both houses by a ma¬ 
jority vote, be vetoed by the Governor, and passed over his 
veto by a two-thirds vote of the members present in each 
house; and third, it may pass both houses by a majority 
vote and fail to receive the signature of the Governor within 
five days after it is presented to him, Sundays excluded, 
when these are not the last five days of the session, or when 
the Legislative Assembly did not, by adjourning, prevent 
its return on the fifth day. A bill may fail to become a law 
in four ways, as follows: First, it may fail to pass the house 
in which it originated; second, it may pass the house in 
which it originated, but fail to pass the other house; third, 
it may pass both houses by a majority vote, be vetoed by 
the Governor, and fail to be passed over his veto by a two- 
thirds vote of those present in each house; and, fourth, 
it may be “pocketed” by the Governor during the last five 
days of the session, and fail to receive his signature within 
fifteen days thereafter. When the Governor vetoes a bill 
during the session of the Legislature, he must return the 
same to the house in which it originated, together with his 
objections, which objections must be entered upon the 
journal of such house. When he “pockets” a bill, he must 
file same, with his objections, in the office of the Secretary 
of State. 


[7:12] 


OI^ MONTANA. 


103 


The two great ends attained by all this are, first, to pro¬ 
tect the Executive Department from the encroachments 
upon its proper authority by the Legislative Department; 
and, second, to interpose an additional stay upon hasty 
legislation. It will be noticed, however, that the Gover¬ 
nor’s veto, like the President’s, is not intended to be final, 
but simply to bring about a reconsideration of the matter. 

SECTION 13. 

VETO OF ITEMS IN GENERAI. APPROPRIATION BILE. 

The Governor shall have the power to disapprove of any item or items 
of any bill making appropriations of money, embracing distinct items, and the 
part or parts thereof approved shall become law, and the item or items dis¬ 
approved shall be void, unless enacted in the manner following: If the Legis¬ 
lative Assembly be in session he shall within five days transmit to the house 
in which the bill originated, a copy of the item or items thereof disapproved, 
together with his objections thereto, and the items objected to shall be sepa¬ 
rately reconsidered, and each item shall then take the same course as is pre¬ 
scribed for the passage of bills over the executive veto. 


Usually the Governor must either approve a bill passed 
by the Legislative Assembly in whole, or else veto it in 
whole. But under this section, he is given the power to 
approve one or more items in a general appropriation bill 
and veto the remainder. When one or more items of a 
general appropriation bill are vetoed, each one must be 
reconsidered separately, and in the same manner as pre¬ 
scribed for the passage of a bill over the Governor’s veto, 
Imt in all cases such items shall be void unless repassed 
by a two-thirds vote of the members present in each house. 
The purpose of this is to interpose a stay on the enactment 
into law of certain appropriation items, unworthy, perhaps, 
in themselves, and unable to be passed upon their own 
merits if considered separately, but w^hich slipped through 
on the merits of the worthy items of the general appropri¬ 
ation bill. 


20 


[7- 13 ] 


104 


civil, gov^rnme:nt 


SECTION 14. 

VACANCIES IN THE OFFICE OF GOVERNOR. 

In case of the failure to qualify, the impeachment or conviction of felony 
or infamous crime of the Governor, or his death, removal from office, resig¬ 
nation, absence from the state, or inability to discharge the duties of hie 
office, the powers, duties and emoluments of the office, for the residue of the 
term, or until the disability shall cease, shall devolve upon the Eieutenant 
Governor. 

Vacancies in the office of Governor may be either per¬ 
manent or temporary. They are temporary when the duly 
elected Governor fails to qualify on tUe first Monday of 
January in the year next succeeding the one in which he 
was elected, or when impeachment charges have been pre¬ 
ferred against him by the House of Representatives, or 
when he is absent from the state, or when, because of some 
mental or physical disease, he is unable to discharge the 
duties of his office. They are permanent when the Gov¬ 
ernor has been impeached by the Senate and removed from 
office, or has been convicted of felony or other infamous 
crime, or when he has been removed by death, or has 
resigned. When the vacancy is permanent, the Lieutenant 
Governor is entrusted witli the powers and duties of Gov¬ 
ernor for the unexpired term for which he and his chief 
were elected; but when the vacancy is only temporary, 
then the powers and duties of the Governor devolve upon 
the Lieutenant Governor only during the time the disa¬ 
bility continues. Directly upon its removal, the Governor 
again becomes vested with the supreme executive authority 
and the Lieutenant Governor must step aside. Whenever 
the Lieutenant Governor exercises the powers or performs 
the duties of Governor, whether temporarily or perma¬ 
nently, he shall during the time he acts as Governor re¬ 
ceive the emoluments of that office. 


[7:14] 


OI^ MONTANA. 


105 


SECTION 15. 

DUTIES OF THE EIEUTENANT GOVERNOR. 

The Lieutenant Governor shall be President of the Senate, but shall vote 
onl5' when the Senate is equally divided. In case of the absence or dis¬ 
qualification of the Lieutenant Governor, from any cause which applies to 
the Governor, or when he shall hold the office of Governor, then the Presi¬ 
dent pro tempoi-e of the Senate shall perform the duties of the Lieutenant 
Governor until the vacancy is filled or the disability removed. 


The Lieutenant Governor of this state is the presiding 
officer of its Senate, just as is the Vice President of the 
United States the presiding officer of the national Senate. 
But he cannot vote on any matter before the Senate, unless 
there is a tie, when he has the casting or deciding vote. 
This is different from the power of the Speaker of the House 
of Representatives, and also of the President pro tempore 
^of the Senate when acting as its presiding officer, for both 
of these, being members of their respective houses, can vote 
on all matters before the same, but neither of them, in case 
of a tie, has the casting vote, and hence when such is the 
case the matter is lost. 

Vacancies in the office of Lieutenant Governor may also 
be permanent or temporary, and may result from any cause 
which applies to the office of Governor, and, in addition, 
from his acting as chief executive. When such is the case 
the President pro tern, of the Senate acts as its presiding 
officer until the vacancy is filled by the election of another 
Lieutenant Governor, or until the disqualification is re¬ 
moved. The President pro tern, of the Senate, when act¬ 
ing as its presiding officer, receives the same compensation 
per diem during the sessions of the Legislative Assembly 
as that enjoyed by the Lieutenant Governor. 


[7:15] 


io6 


civile GOVERNMENT 


SECTION i6. 

VACANCIES IN THE OFFICE OF BOTH GOVERNOR AND LIEUTEN¬ 
ANT GOVERNOR. 

In case of the failure to qualify in his office, death, resignation, absence 
from the state, impeachment, conviction of felony or infamous crime, or dis¬ 
qualification from any cause, of both Governor and Lieutenant Governor, the 
duties of the Governor shall devolve upon the President pro tempore of the 
Senate until such disqualification of either the Governor or Lieutenant Gov¬ 
ernor be removed or the vacancy filled, and if the President pro tempore 
of the Senate, for any of the above named causes, shall become incapable of 
performing the duties of Governor, the same shall devolve upon the Speaker 
of the House. 

The office of Governor is by far the most important office 
in this state, and hence to allow it to be vacant for any 
length of time would doubtless result disastrously to the 
people of Montana. Therefore, to guard against every 
probable contingency in this respect, the foregoing section, 
which provides that if both the Governor and Lieutenant 
Governor, for any cause mentioned in Section 14, this 
Article, cannot exercise the powers and perform the duties 
of the office of Governor, the same shall devolve upon the 
President pro tern, of the Senate, or if he also for any of 
such causes is disqualified, then upon the Speaker of the 
House, was inserted. Thus far there is no instance on 
record in this state where either the President pro tern, 
or the Speaker has lieen called upon to exercise the func¬ 
tions of Governor. 


SECTION 17. 


THE GREAT SEAL. 

The first Legislative Assembly shall provide a seal for the state, which 
shall be kept by the Secretary of State and used by him officially, and known 
as the Great Seal of the State of Montana, 

The Great Seal of this state, as provided by the Legisla¬ 
tive Assembly thereof, is as follows; In the center of the 
[7:16-17] 


OI^ MONTANA. 


107 

seal is a group representing a plow and a miner’s shovel 
and pick. Upon the right of this is a representation of 
the Great Falls of the Missouri, and upon the left is a^ 
mountain scene, while underneath are the words, “Oro- 
y-Plata.” The seal is two and one-half inches in diameter, 
and surrounded by these words, '‘The Great Seal of the 
State of Montana.’’ 

The purpose of the Great Seal of the State of Montana 
IS to authenticate all public instruments, commissions, proc¬ 
lamations, etc., and its keeper is the Secretary of State. 

Each of the executive and state officers, and also the 
clerks of the courts of record, county clerks and notaries 
public must have seals for the purpose of authenticating 
their actions, as must also municipal and private corpora¬ 
tions. 


SECTION 18. 

AUTHENTICATION OF GRANTS AND COMMISSIONS. 


All grants and commissions shall be in the name and by the authority of 
the State of Montana, sealed with the Great Seal of the state, signed by the 
Governor and countersigned by the Secretary of State. 

Public documents of this character are very important, 
and hence to guard against the people being imposed upon 
by counterfeits or forgeries the above section was inserted. 
No state grant, commission, proclamation, etc., is genuine 
unless it is made in the name and by the authority of the 
State of Montana, and in addition is signed by the Gov¬ 
ernor, countersigned by the Secretary of State, and sealed 
with the Great Seal of the State of Montana. 


[7:18] 


io8 


CIVIL gove:rnment 


SECTION 19. 

' ACCOUNTS OF EXECUTIVE OFFICERS. 

An account shall be kept by the officers of the Executive Department and 
of all public institutions of the state of all moneys received by them, sever¬ 
ally from all sources, and of every service performed, and of all moneys dis¬ 
bursed by them severally, and a semi-annual report shall be made to the 
Governor under oath; they shall also, at least twenty days preceding each 
regular session of the Legislative Assembly, make full and complete reports 
of their official transactions to the Governor, who shall transmit the same 
to the I.cgislalive Assembly. 

The object of all this is to prevent the misappropriation 
of public funds, by requiring that the state executive officers 
and the officers of public institutions shall furnish the 
Governor semi-annually, upon oath, a ‘statement of the 
receipts and disbursements of their respective offices; and 
to prevent misfeasance and malfeasance in office, by re¬ 
quiring that each of such officers shall at least twenty days 
])rior to each regular session of the Legislative Assembly, 
give a complete report of the official transactions of his 
office to the Governor, who in turn must transmit the same 
to the Legislative Assembly. 


SECTION 20. 

STATE BCLARD OF EXAMINERS, ETC. 


The Governor, Secretary of State and Attorney General shall constitute a 
State Board of Prison Commissioners, which board shall have such super¬ 
vision of all matters connected with the state prisons as may be prescribed 
by law. They shall constitute a Board of Examiners, with power to examine 
all claims against the state, except salaries or compensation of officers fixed 
by law, and perform such other duties as may be prescribed by law. And 
no claims against the state except salaries and for compensation of officers 
fixed by law, shall be passed upon by the Legislative Assembly without first 
having been considered and acted upon by said Board. The Legislative As- 


[7:19-20] 


Ot' MONTANA. 


109 


sembly may provide for the temporary suspension of the State Treasurer by 
the Governor, when the Board of Examiners deems such action necessary 
for the protection of the moneys of the state. 


The duty of the State Board of Examiners created by this 
section is to examine all claims against the state, except 
salaries or the compensation of officers fixed by law, and 
also to act in the capacity of a supplies and furnishing 
board for the purpose of furnishing to the Legislative and 
other departments of the state government all necessary 
supplies; provide offices in which to transact the public 
business, etc. No claim against the state, except as other¬ 
wise herein provided, can be given any consideration or 
action by the Legislative Assembly, unless first considered 
and acted upon by the Board of Examiners, though if such 
claim is rejected by the Board, an appeal lies to the Legis¬ 
lative Assembly. This is so provided in order that the 
valuable time and attention of the Legislative Assembly 
may not be taken up by considering or inquiring into the 
grounds upon which claims against the state are supported. 
And whenever the Board of Examiners believes that the 
State Treasurer is embezzling the public funds, or is neg¬ 
ligent in keeping the accounts or performing the duties 
of his office, and the like, they must certify that fact to the 
Governor, who must straightway suspend such Treasurer 
temporarily or until the truth of the charge can be either 
sustained or disproven by a thorough examination of the 
books and accounts of his office. If the charge is sus¬ 
tained, then the Governor must appoint some person to 
act as State Treasurer in the place of the suspended officer, 
which person holds his- office until the State Treasurer is 
restored or until the election and qualification of his suc¬ 
cessor. The reason for this is that if it were necessary to 
wait for the Legislative Assembly to impeach such officer. 


[7:20] 


lO 


CIVIIy GOVERNMENT 


much valuable time might be lost and incalculable injury 
occasioned by the delay. 

The Board of State Prison Commissioners has absolute 
control over the management of the state penitentiary, the 
warden thereof being entirely under its direction. 


ARTICLE VIII. 

JUDICIAL DEPARTMENT. 
SECTION I. 


IN WHAT THE JUDICIAL POWER IS VESTED. 

The judicial power of the state shall be vested in the Senate sitting as a 
Court of Impeachment, in a Supreme Court, District Courts, justices of the 
peace, and such other inferior courts as the Legislative Assembly may estab¬ 
lish in any incorporated city or town. 


The Senate has judicial power only to try impeachments. 
And it is the only court that can try such cases. All other 
judicial powers of this state are vested in a Supreme Court, 
District Courts, justices of the peace, and police courts. Of 
these the Supreme Court and the District Courts only are 
courts of record, the other two being inferior courts. Jus¬ 
tices’ courts are established in each organized township of 
the state, while police courts are established only in in¬ 
corporated cities or towns. - 


OF MONTANA. 


I I I 


SECTION 2. 

JURISDICTION OF TIIF SUPREME COURT. 


The Supreme Court, except as otherwise provided in this Constitution, 
shall have appellate jurisdiction only, which shall be co-extensive with the 
state, and shall have a general supervisory control over all inferior courts, un¬ 
der such regulations and limitations as may be prescribed by law. 


The jurisdiction of the Supreme Court is of two kinds: 
appellate and original; and such jurisdiction extends to 
all parts of the state. It exercises original jurisdiction 
only in the issuing of certain writs mentioned in the next 
succeeding section; in all other cases its jurisdiction is 
appellate. It also has a general supervisory control over 
the other courts of the state. This latter was so provided 
in order that the appellate jurisdiction of the Supreme 
Court might not in any manner be hampered, either by the 
inferior courts refusing to allow appeals from their deci¬ 
sions, or, having allowed such appeals, to respect and obey 
the decisions of the appellate court. This supervisory con¬ 
trol is effected by a resort to various writs, each applicable 
to the particular case. 


SECTION 3. 

POWERS OF THE SUPREME COURT. 

The appellate jurisdiction of the Supreme Court shall extend to all cases 
at law and in equity, subject, however, to such limitations and regulations as 
may be prescribed by law. Said court shall have power in its discretion to 
issue and to hear and determine writs of habeas corpus, mandamus, quo 
warranto, certiorari, prohibition and injunction, and such other original and 
remedial writs as may be necessary or proper to the complete exercise of its 


[8:2-3] 


I 12 


CIVIL GOVERNMENT 


appellate jurisdiction. When a jury is required in the Supreme Court to de¬ 
termine an issue of fact, said court shall have power to summon such jury 
in such manner as may be provided by law. Each of the justices of the Su¬ 
preme Court shall have power to issue writs of habeas corpus to any part 
of the state, upon petition by or on behalf of any person held in actual cus¬ 
tody, and may make such writs returnable before himself, or the Supreme 
Court, or before any District Court of the state or any judge thereof; any 
such writs may be heard and determined by the justice or court, or judge, be¬ 
fore whom they are made returnable. Each of the justices of the Supreme 
Court may also issue and hear and determine writs of certiorari in proceed¬ 
ings for contempt in the District Court, and such other writs as he may be 
authorized by law to issue. 


The Siiprenie Court has ori,£^inal jurisdiction to issue, 
hear and determine the following writs only: Writs of 
mandamus, habeas corpus, quo zvarranfo, certiorari, injunction 
and prohibition, and such other writs as may be necessary 
and proper to the complete exercise of its appellate juris¬ 
diction. It will be noticed, however, that the power of the 
court to exercise original jurisdiction is discretionary with 
it. Hence, except in extreme cases or when the complete 
exercise of its appellate jurisdiction is being hampered, it 
refrains from exercising original jurisdiction, and refers 
all petitioners for any of the writs named in this section 
to the District Courts, which have concurrent power with 
the Supreme Court to issue, hear and determine them. 

These great remedial writs have been in use by the courts 
of record of most civilized nations from time immemorial, 
and their beneficence is too well established to admit of 
question. The office of each of them is as follows: 

Writ of Mandamus (We command you).—This writ com¬ 
pels civil officers and others to discharge certain duties and 
trusts imposed upon them by law—to do something re¬ 
quired of them by law, but which they have refused or 
neglected to do. 

Writ of Habeas Corpus (That you have the body).—By 
means of this writ an officer or any other person charged 


[8:3] 


01^ MONTANA. 


II 3 

with unjustly imprisoning or confining another is com¬ 
pelled to show reason why such person should not be lib¬ 
erated, and failing in this to set him free. This is the rem¬ 
edy the law gives for the enforcement of the civil right of 
personal liberty, and so important is it thought to be that 
any justice of the Supreme Court, as well as the court itself, 
may issue writs of habeas corpus to any part of the state 
and make the same returnable either before himself, or 
!)cfore the Supreme Court, or before any District Court of 
the state, or any judge thereof, as may be most convenient 
or best serve the ends of justice. 

Writ of Quo Warranto (By what warrant or authority).— 
By means of this writ a person or corporation charged with 
usurping power is compelled to show by what authority he 
or it exercises such power, and failing in this to desist from 
henceforth doing so. Thus, if an officer whose term ex¬ 
pired on the first Monday of January, 1901, refuses at that 
time to surrender his office to his duly elected and qualified 
successor, such successor can apply to the court for a writ 
of quo warranto, and thereby compel his predecessor to 
either vacate the office in his favor or show legal cause for 
not doing so. 

Writ of Certiorari (To be certified or made more certain). 
—This writ, in Montana, is also called the writ of review, 
and its office is to compel an inferior tribunal, board or 
officer, exercising judicial functions, when it appears that 
such inferior court, board or officer has exceeded its or his 
jurisdiction, and there is no appeal therefrom, nor a plain, 
speedy and adequate remedy at law, to send to the court 
issuing the writ a certified copy of the record of the pro¬ 
ceeding in which it is claimed that jurisdiction has been 
exceeded, for the purpose of reviewing the same. Thus, 
if the board of county commissioners rejects an official 
bond for any other reason than that the same was not 


civil, gove:rnmi:nt 


II4 

executed by sufficient and responsible sureties, or is not in 
form and substance as required by law, a writ of certiorari 
will lie to review their action. Writs of certiorari may be 
issued by either the Supreme Court or the District Courts, 
or by any justice of the Supreme Court when it appears 
that the District Court has exceeded its jurisdiction in con¬ 
tempt proceedings. 

Writ of Injunction .—The purpose of this writ is to compel 
the doing of certain things, which, if left undone, would 
result in irremediable injury, and to enjoin or forbid the 
doing of certain things, which, if done, would result in an 
injury for which the law affords no plain, speedy and ade¬ 
quate remedy. 

Writ of Prohibition .—This writ is the counterpart of the 
writ of mandamus. It forbids civil officers, boards, etc., 
to do certain things, which, if done, would be in excess of 
their jurisdiction or authority. 

Writ of Error. It is by means of this writ principally 
that the Supreme Court is enabled to exercise completely 
its appellate jurisdiction. It may be issued in all cases 
where an appeal lies from the District Courts to the Supreme 
Court, and its office is to compel the District Court to send 
up for examination and review the record upon which a 
judgment was given therein, and, on such examination, to 
affirm or reverse the same according to law. It is very 
similar to certiorari, the chief distinguishing difference be¬ 
ing that the writ of error lies where the law allows an 
appeal, while the writ of certiorari lies where no appeal is 
allowed by law. 

The appellate jurisdiction of the Supreme Court, how¬ 
ever, is by far the most important, and it extends to all 
cases at law and in equity in which a judgment, decision or 
decree has been entered in any of the District Courts. When 
a case is appealed, the application and the interpretation of 
[8:3] 


MONTANA. 


15 


the law by the lower court only is reviewed, the findings of 
fact receiving no consideration except so far as the applica¬ 
tion of the law to them is concerned. If, upon such review, 
it is determined that the lower court applied the law cor¬ 
rectly to the particular case at bar, or interpreted the same 
correctly, the decision, judgment or decree of such court is 
affirmed. If otherwise, such decision is reversed and the 
case usually sent back for a new trial, with instructions to 
the trial court to interpret or apply the law differently. 

The decisions of the Supreme Court as to the application 
or interpretation of the laws of this state are followed al¬ 
most without exception by the other courts, and usually 
thereafter by itself, though not invariably. 

A decision of the state Supreme Court upon the consti¬ 
tutionality of a state law is the highest authority relative 
thereto, as is the decision of the United States Supreme 
Court relative to the constitutionality of the laws of Con¬ 
gress. 


SECTION 4. 

TERMS OF THE SUPREME COURT. 


At least three terms of the Supreme Court shall be held each year at the 
seat of government. 


Under the law as it is at the present time there must be 
not less than four terms of the Supreme Court held during 
each year, commencing on the first Tuesdays of March, 
June, October and December, respectively. The chief jus¬ 
tice (or any two associate justices) has the power to call 
a special term at any time. 


[8:4] 


ii6 


civil, GOVERNMENT 


SECTION 5. 

ORGANIZATION OF THE SUPREME COURT. 

The Supreme Court shall consist of three justices, a majority of whom 
shall be necessary to form a quorum or pronounce a decision, but one or 
more of said justices may adjourn the court from day to day, or to a day 
certain, and the Legislative Assembly shall have the power to increase the 
number of said justices to not less nor more than five. In case any justice 
or justices of the Supreme Court shall he in any way disqualified to sit in a cause 
brought before such courts the remaining justice or justices shall have poiver to call on 
one or more of the district judges of this state as in the particular Case may be neces¬ 
sary to constitute the full number of justices of which said court shall then be com¬ 
posed^ to sit with them in the hearing of said cause. In all cases wher^ a district 
judge is invited to sit and does sit as by this section provided, the decision and the 
opinion of such district judge shall have the same force and effect, in any case heard 
before the court, as if regularly participated in by a justice of the Supreme Court. 

The foregoing section was amended at the general -elec¬ 
tion in 1900, by adding thereunto the words in italics. This 
is the only amendment that has thus far been made to the 
Constitution of Montana. 

At the present time the Supreme Court consists of one 
chief justice and two associate justices—three in all. But 
the Legislative Assembly has the power to increase the 
number to no more and no less than one chief justice and 
four associate justices, though it is hardly probable that 
such will be done for many years to come, if at all. 

A majority of these justices is sufficient to form a quorum 
for the transaction of business and to pronounce a decision, 
though a less number may adjourn from day to day, or 
to a day certain, in order to keep up the organization of 
the court. This is in conformity with the doctrine that 
“the majority rules,” and with the practice in the highest 
courts of all civilized states. 

It often happens, however, that one or more of the jus¬ 
tices, either because of being of kin to one of the parties, 
or because he was interested in the case while still prac- 


[8:5] 


MONTANA. 


II7 


ticing at the bar, or otherwise, is disqualified to sit in a 
cause brought before the Supreme Court. In such case 
it is very obvious that justice would often fail to be done 
or administered, as the concurrence of a majority of the 
justices is necessary to render a decision. Therefore, in 
order that the hands of justice might not be tied in this 
respect, the foregoing amendment, which provides that the 
remaining justice or justices shall have the power to call 
upon as many district judges of this slate as may be neces¬ 
sary to constitute the full number of justices of which the 
court shall then be composed; to sit with him or them in 
the hearing of such cause was adopted. It will be noticed 
that no district judge can be compelled to accept such call, 
though under the circumstances it is hardly probable that 
any of them would refuse the opportunity offered.’ And 
when such district judge does sit as provided in this section, 
his decision and opinion have the same force and effect as if 
made or pronounced by one of the regularly elected and 
qualified justices. The reason for this is obvious. 

SECTION 6. 

ELECTION OF JUSTICES. 

The justices of the Supreme Court shall be elected by the electors of the 
state at large, as hereinafter provided. 

That is, the justices of the Supreme Court shall be elected 
or chosen by a plurality of the votes cast by those who are 
permitted to exercise the privilege of suffrage under the 
laws of the State of Montana. This is different from the 
justices of the United States Supreme Court, who are 
appointed by the President, by and with the advice and 
consent of the Senate. 

For the terms of office of justices, and the time of their 
election, see sections 7 and 8, this Article. 


[ 8 : 6 ] 


ii8 


civil, GOVERNMENT 





SECTION 7. 

TRRMS OF JUSTICES. 

The term of ofhce of justices of the Supreme Court, except as in this Con¬ 
stitution otherwise provided, shall be six years. 


This is also different from the terms of office of justices 
of the United States Supreme Court, who hold for life, or 
during good behavior. 


SECTION 8. 


TIME OF election of JUSTICES. 

There shall be elected, at the hrst general election, provided for by this 
Constitution, one chief justice and two associate justices of the Supreme 
Court. At said election the chief Justice shall be elected to hold his ofhee 
until the general election in the year one thousand eight hundred and ninety- 
two, and one of the associate justices to hold his office until the general elec¬ 
tion in the year one thousand eight hundred and ninety-four, and the other 
associate justice to hold his office until the general election in the year one 
thousand eight hundred and ninety-six, and each shall hold until his successor 
is elected and qualified. The terms of office of said justices, and which one 
shall be chief justice, shall at the first and all subsequent elections be deter¬ 
mined by ballot. After said first election one chief justice or one associate 
justice shall be elected at the general election every two years, commencing 
in the year one thousand eight hundred and ninety-two, and if the Legislative 
Assembly shall increase the number of justices to five, the first terms of office 
of such additional justices shall be fixed by law in such manner that at least 
one of the five justices shall be elected every two years. The chief justice 
shall preside at the sessions of the Supreme Court, and in case of his absence, 
the associate justice having the shortest term to serve shall preside in his 
stead. 

One justice of the Supreme Court is now chosen at the 
general election held on the first Tuesday after the first 
Monday of November in each even-numbered year, and 
the term of office of each of them begins on the first Mon¬ 
day of the next succeeding January after his election. 

[«: 7 - 8 ] 


01^ MONTANA. 


I19 

The chief justice presides at all sessions of the Supreme 
Court, but if he happens to be absent, the justice having 
the shortest term to serve presides in his stead. 

Should the number of justices be increased to five by 
the Legislative Assembly, then it is more than probable 
that their terms of office will be extended to ten years, one 
of them being elected every two years. 

The reason for electing justices in this manner, and not 
all of them at the saifie time, is to at all times have a num¬ 
ber of experienced jurists on the Supreme Bench. 


SECTION 9. 

CLERK OF SUPREME COURT. 


There shall be a elerk of the Supreme Court, who shall hold his office for 
the term of six yearns, except that the first clerk elected shall hold his office 
only until the general election in the year one thousand eight hundred and 
ninety-two, and until his successor is elected and qualified. He shall be 
elected by the electors at large of the state, and his compensation shall be 
fixed by law, and his duties prescribed by law and by the rules of the Su¬ 
preme Court. 


A clerk of the Supreme Court is now elected at each 
general ejection held in every sixth year from and after 
the year 1892, so that our present clerk was elected in 1898, 
and his successor will be elected at the general election in 
1904. 

The duties of the clerk, generally speaking, are to keep 
the seal of the court and the records and files thereof; also, 
to keep the roll of attorneys and to act in the capacity of 
a general bookkeeper for the court. His salary is twenty- 
five hundred dollars per annum. 


21 


[8:9] 


120 


CIVIIv GOVE^RNME^Nl" 


SECTION lo. 

QUALIFICATIONS OF JUSTICES. 

No person shall be eligible to the office of justice of the Supreme Court, 
unless he shall have been admitted to practice law in the Supreme Court of 
the territory or State of Montana, be at least thirty years of age and a citizen 
of the United States, nor unless he shall have resided in said territory or 
state at least two years next preceding his election. 

Under this section no person can qualify as a justice of 
the Supreme Court unless he has been admitted to the 
Montana bar, is at least thirty years of age, a citizen of the 
United States, either by birth or naturalization, and a res¬ 
ident of Montana for at least two years next preceding the 
date of his election. Taking the dignity and the impor¬ 
tance of the office into consideration, these requirements 
appear to be extremely wise and just. 


SECTION II. 

JURISDICTION OF THE DISTRICT COURTS. 

The District Court shall have original jurisdiction in all cases at law and 
in equity, including all cases which involve the title or right of possession 
of real property, or the legality of any tax, impost, assessment, toll or mu¬ 
nicipal fine, and in all cases in which the debt, damage, claim <ft demand, ex¬ 
clusive of interest, or the value of the property in controversy exceeds fifty 
dollars; and in all criminal cases amounting to felony, and in all cases of 
misdemeanor not otherwise provided for; of actions of forcible entry and 
unlawful detainer; of proceedings in insolvency; of actions to prevent or 
abate a nuisance; of all matteis of probate; of actions of divorce and for 
annulment of marriage, and for all such special actions and proceedings as 
are not otherwise provided for. And said courts shall have the power of 
naturalization, and to issue papers therefor, in all cases where they are au¬ 
thorized to do so by the laws of the United States. They shall have appellate 
jurisdiction in such cases arising in justices’ and other inferior courts arising 
in their respective districts as may be prescribed by law, and consistent with 


[8;lo-ii] 


OI^ MONTANA. 


I 2 I 


the Constitution. Their process shall extend to all parts of the state, prov.dcd 
that all actions for the recovery of, the possession of, quieting the title to, or 
tor the enforcement of liens upon real property, shall be commenced in the 
county in which the real property, or any part thereof, affected by such ac¬ 
tion or actions, is situated. Said courts and the judges thereof shall have 
power also to issue, hear and determine writs of mandamus, quo warranto, 
certiorari, prohibition, injunction and other original and remedial writs, and 
also all writs of habeas corpus on petition by, or on behalf of, any person 
held in actual custody in their respective districts. Injunctions, writs of pro¬ 
hibition and habeas corpus may be served on legal holidays and non-judicial 
days. 

The District Courts are, perhaps, in a sense, by far the 
most important courts of the state, as they are the principal 
courts of original jurisdiction. True, they have appellate 
jurisdiction also in cases arising in justices’ and police 
courts, but it is for the remarkable scope of their original 
jurisdiction and their nearness to the people that they are 
noted, in contradistinction to the Supreme Court, which is 
noted principally for its appellate jurisdiction. It is in these 
courts that all important cases and most special proceed¬ 
ings are commenced, of whatever nature or kind, the 
smaller ones being first brought before a justice of the 
peace or police coiut. 

SECTIONS 12 AND 13. 

JimiCIAL DISTRICTS. 

The state shall be divided into judicial districts, in each of which there 
shall be elected by the electors thereof, one judge of the district court, whose 
term of office shall be four years, except that the district judges hrst elected 
shall hold their offices only until the general election m the year one thou¬ 
sand eight hundred and ninety-two, and until their successors are elected 
and qualified. Any judge of the District Court may hold court for any other 
district judge, and shall do so when required by law. 

At the present time the state is divided into twelve judi¬ 
cial districts, composed of from one to four counties each, 
over each of which districts not less than one dis- 


[8:12-13] 


22 


Civil, GOVERNMENT 


trict judge presides. These judges are elected by the 
qualified voters of their respective districts, at the general 
election held on the first Tuesday after the first Monday 
of November in every year the number of which is divisible 
by four, and hold office for four years from and including 
the first Monday of the next succeeding January, or until' 
their successors are elected and qualified. 

Any of these district judges may hold court for any other 
district judge, upon his request, and must do so upon the 
request of the Governor; and while thus holding court 
such judge has the same power, both in court and at cham¬ 
bers, as he has in the district for which he was elected, and 
his decisions and orders have the same force and effect as if 
rendered or made by the duly elected and qualified judge 
for such district. This is so provided in order that, in case 
any judge is disqualified to sit in a certain cause, or other¬ 
wise, justice in his district need not be either hindered, 
delayed or defeated because of that fact. 

Section 13 simply defined the boundaries of the judicial 
districts of the state, until such time as the Legislative 
Assembly could change them. At the present time it is of 
no value except to the historian, and hence is omitted. 

SECTION 14. 

NUMBER OF DISTRICT JUDGES. 

The Legislative Assembly may increase or decrease the number of judges 
in any judicial district; provided, that there shall be at least one judge in 
any district established by law; and may divide the state or any part thereof 
into new districts; provided, that each be formed of compact territory and be 
bounded by county lines, but no changes in the number or boundaries of dis¬ 
tricts shall work a removal of any judge from office during the term tor which 
he has been elected or appointed. 

Thus, we see that the Legislative Assembly has the 
power to apportion the state into as many judicial districts 


[8:14] 


MONTANA. 


123 


as it may deem necessary, and to determine how many 
judges each district shall have, the only restrictions on its 
power in this respect being that each district must have at 
least one judge, and that each of such districts must be 
formed of compact and contiguous territory and be 
bounded by county lines. 

At the present time the state is divided into twelve judi¬ 
cial districts, each of which districts has one judge, except 
the one comprising Lewis & Clark county, which has two, 
and the one comprising Silver Bow county, which has 
three. 


SECTION 15. 

WRITS OF ERROR. 


Writs of error and appeals shall be allowed from the decisions of the said 
District Cc.urts to the Supreme Court under such regulations as may be pre¬ 
scribed by law. 


An appeal in law is the removal of a matter or cause from 
an inferior to a superior court for the purpose of reviewing, 
correcting, or reversing the judgment or sentence of the 
inferior tribunal. In order that appeals in all matters where 
they are allowed by law may be effectively secured, the 
foregoing section authorizing the issuing of writs of error 
and appeals by the Supreme Court to any District Court to 
compel the sending up of the record of a certain cause or 
action determined by such District Court, for the purpose 
of reviewing, correcting or reversing the judgment, sen¬ 
tence or decree lendered therein, was inserted. 


[8:15] 


124 


civil. GOVERNMENT 


SECTION i6. 

QUALIFICATIONS OF JUDGES. 

No person shall be eligible to the office of judge of the District Court un¬ 
less he be at least twenty-five years of age and a citizen of the United States, 
and shall have been admitted to practice law in the Supreme Court of the ter¬ 
ritory or State of Montana, nor unless he shall have resided in this state oi* 
territory at least one year next preceding his election. He need not be a 
resident of the district for which he is elected at the time of his election, but 
after his election he shall reside in the district for which he is elected during 
his term of office. 

The qualifications of district judges are similar to those 
of Supreme Court justices, with the exception that they 
need be but twenty-five years of age at the time of their 
election, instead of thirty, and the further exception that 
their residence in this state need be only for one year next 
preceding the date of their election, instead of two. Judges 
need not be residents of the districts for which they are 
elected, but after their election they must reside in such 
districts during their terms of office. This is so provided 
in order that the judge might be close at hand in case of an 
emergency, as it would be manifestly inconvenient and at 
times disastrous to property and personal rights if it were 
necessary to seek him outside of his district. 

SECTION 17. 

TERMS OF a HE DISTRICT COURTS. 

The District Court in each county which is a judicial district by itself shall 
be always open for the transaction of business, except on legal holidays and 
non-judicial days. In each district where two or more counties are united, 
until otherwise provided by law, the judges of such district shall fix the term 
of court, provided thlat there shall be at least four terms a year held in each 
county. 

The sessions of the District Courts are held at the county 
seats of each of the counties. In those counties which 
comprise a judicial district by themselves the District Court 




[8:16-17] 


MONTANA. 


125 


is always open for the transaction of business, except on 
legal holidays and non-judicial days. In all other cases 
the number of sessions held in each county and the dates 
on which they commence are determined by the district 
judge of the district in which such county is situated; pro¬ 
vided, that there must be at least four terms or sessions 
held in each county annually. 

SECTION 18. 

cli:rks of district courts. 

There shall be a clerk of the District Court in each countv, who shall be 
elected by the electors of his county. The clerk shall be elected at the same 
time and for the same term as .the district judge. Vl'he duties and compen.sa- 
tion of said clerk shall be as provided by law. 

The duties of the District Court clerks, generally speak¬ 
ing, are to keep the seal and the records and files of the 
District Court for their respective counties, etc. Their sal¬ 
aries range all the way from twelve hundred to thirty-five 
hundred dollars per annum, according to the assessed val¬ 
uation of the counties for which they are elected. 

SECTION 19. 

COUNTY ATTORNEYS. 

There shall be elected at the general election in each county of the state 
one county attorney, whose qualifications shall be the same as are required for 
a judge of the District Court, except that he must be over twenty-one years 
of age, but need not be twenty-five years of age, and whose term of office 
shall be two years, except that the county attorneys first elected shall hold their 
offices until the general election in the year one thousand eight hundred and 
ninety-two, and until their successors are elected and qualified. He shall 
have a salary to he fixed by law, one-half of which shall be paid by the state 
and the other half by the county for which he is elected, and he shall perform 
such duties as may be required by law. 

On the first Tuesday after the first Monday in Novem¬ 
ber of every even-numbered year there is elected in each 
county of. this state a county attorney for such county. 

[8:18-19J 


126 


civiiv gove:rnme:nt 


The duty of the county attorney is to prosecute in the name 
of the state all criminal actions arising in his county, and 
also to act in the capacity of his county’s lawyer. The 
salary of the county attorney ranges all the way from one 
thousand to three thousand dollars per annum, according 
to the assessed valuation of the county for which he was 
elected. One-half of this salary is ])aid by the state and 
the remainder by his county. This is because, as the 
county attorney is compelled to prosecute the state’s crim¬ 
inal actions arising in the county for which he was elected, 
it is but fair and just that one-half of his salary should be 
paid by the state. 


SECTION 20. 

JUSTICES OF THE PEACE. 


There shall be elected in each organized township of each county by the 
electors of such township at least two justices of the peace, who shall hold 
their offices, except as otherwise provided in this Constitution, for the term 
of two years. Justices’ courts shall have such original jurisdiction within 
their respective counties as may be jirescribed by law, except as in this Con¬ 
stitution otherwise provided; provided, that they shall not have jurisdiction 
in any case where the debt, damage, claim or value of the property involved 
exceeds the sum of three hundred dollars. 


Justices of the peace, being township judicial officers, are 
elected by the qualified voters of their respective town¬ 
ships, and at the same time and for the same term as 
county attorneys. Each organized township is entitled to 
at least two justices of the peace. It often happens, how¬ 
ever, that some of such townships fail to choose any justices 


[ 8 : 20 ] 


OF MONTANA. 


127 


of the peace at the general election, or do not choose as 
many as they are entitled to by law. When such is the 
case, the board of county commissioners for the county in 
which such township is situated has the power, upon good 
cause shown, to appoint a sufficient number of persons as 
justices of the peace therefor as may be necessary to supply 
the deficiency, which appointees hold office until the next 
general election and until their successors are elected and 
qualified, if they are not sooner removed by the power that 
appointed them. 

Justices’ courts have no other jurisdiction than original, 
and this is very limited, and in many cases over which they 
have original jurisdiction the District Courts also have. 
Thus, we see by this section that no justice’s court has 
jurisdiction over any case where the debt, damage, claim 
or demand, or the value of the property involved exceeds 
the sum of three hundred dollars. And over all of these 
cases where the debt, demand, etc., exceeds the sum of fifty 
dollars, exclusive of interest, the District Court also has 
jurisdiction (section ii, this Article). The jurisdiction of 
justices’ courts extends to all parts of their respective coun¬ 
ties, while that of the District Courts extends to all parts 
of the state. Justices of the peace, except in the larger 
cities, need not be lawyers, as must district judges and 
Supreme Court justices. Any person is qualified for such 
office if he is an elector of the township for which he 
aspires to be elected. 

For further limitations on the jurisdiction and powers 
of justices’ courts, see next section. 


[8:20] 


128 


civil, GOVERNMENT 


SECTION 21. 


JURISDICTION OF JUSTICES’ COURTS. 


Justices’ courts shall not have jurisdiction in any case involving the title 
or right of possession of real property, nor in cases of divorce, nor for annul¬ 
ment of marriage, nor of cases in equity; nor shall they have power to issue 
writs of habeas corpus, mandamus, certiorari, quo warranto, injunction or 
prohibition, nor the power of naturalization; nor shall they have jurisdiction 
in cases of felony, except as examining courts; nor shall criminal cases in 
said courts be prosecuted by indictment; but said courts shall have such juris¬ 
diction in criminal matters, not of the grade of felony, as may be provided by 
law; and shall also have concurrent jurisdiction with the District Courts, in 
cases of forcible entry and unlawful detainer. 


Except as provided in the last preceding section, justices’ 
courts have jurisdiction only of the following public of¬ 
fenses : Petit larceny, assault in the third degree, breaches 
of the peace, riots, routs, afirays, committing a willful injury 
to property, and all other misdemeanors punishable by fine 
not exceeding five hundred dollars, or imprisonment not 
exceeding six months, or by both such fine and imprison¬ 
ment ; also, of the civil action of forcible entry on, and 
the unlawful detainer of, real property when such real 
property is situated within the limits of their respective 
townships, but of this latter class of actions the District 
Courts also have jurisdiction. 

All other cases, except criminal or civil actions arising 
from a violation of city or town ordinances, which must 
be commenced in the police courts (see section 24), jnust 
first be brought in the District Courts. 


[8:21] 


Ol? MONTANA. 


129 


SECTION 22. 

SESSIONS OF JUSTICES’ COURTS. 


Justices’ courts shall always be open for the transaction of business, ex¬ 
cept on legal holidays and non-judicial days. 


This section means what it plainly says, and hence no 
comment is necessary. 


SECTION 23. 

APPEALS FROM JUSTICES’ COURTS. 


Appeals shall be allowed from the justices’ courts in all cases, to the Dis¬ 
trict Courts, in such manner and under such regulations as may be prescribed 
by law. 


An appeal lies to the District Courts from the judgments 
or sentences of justices’ courts, in all cases over which they 
have jurisdiction and which are actually tried by them. 
But when such appeal is taken, the case is tried de novo 
(anew) in the District Court; that is, such case must be re¬ 
tried both as to matters of law and of fact—it must be tried 
as if it was first brought in the District Court. This is very 
dififerent than when appeals are taken from the District 
Courts to the Supreme Court, for in such cases the ques¬ 
tions of law only are retried or reviewed. 


[8:22-23] 


130 


civil, GOVl^RNMKNT 


SECTION 24. 

POLICE OR MUNICIPAL COURTS. 

The Legislative Assembly shall have power to provide for creating such 
police and municipal courts and magistrates for cities and towns as may be 
deemed necessary from time to time, who shall have jurisdiction in all cases 
arising under the ordinances of such cities and towns, respectively; such police 
magistrates may also be constituted ex-officio justices of the peace for their 
respective counties. 

The Legislative Assembly has long since exercised the 
power given it by this section, by providing that a police 
or municipal court shall be established in every incor¬ 
porated city or town. The qualifications for police judges 
are the same as those for justices of the peace. Police 
judges are elected by the qualified voters of their respective 
cities or towns on the first Monday of April in each odd- 
numbered year. Their terms of office commence on the 
first Monday of May next succeeding the date of their 
election and continue for two years, or until their succes¬ 
sors are elected and qualified. 

Police judges, in their respective counties, have the same 
jurisdiction as that given to justices of the peace, and in 
addition to this the court itself has jurisdiction over all 
matters, both civil and criminal, arising because of the 
violation of any of the ordinances of such cities or towns, 
respectively. Also, they have jurisdiction of all actions for 
debt, demand, damage, etc., either for or against their 
respective cities or towns, where! the amount in contro¬ 
versy, exclusive of interest, does not exceed three hun¬ 
dred dollars. If it exceeds such amount, then the District 
Court only has jurisdiction; and all cases of whatever na¬ 
ture, which may be or have been tried in the police courts, 
or by the police magistrates, may be appealed to the Dis¬ 
trict Courts in the same manner and with the same effect as 
from justices’ courts. 

[8:24] 


OF MONTANA. 


131 


SECTION 25. 

COURTS OF RECORD. 


The Supreme and District Courts shall be courts of record. 


Courts of record are those which proceed according to 
the course of the common law, and have attributes and 
exercise functions independent of the persons of the mag¬ 
istrates generally designated to preside over them, and in 
addition possess and use a seal. Such courts in this state 
are the District Courts and the Supreme Court only. All 
other courts now in existence, or which may hereafter be 
created, are and will be inferior courts, or courts not of 
record. 


SECTION 26. 

UNIFORMITY OF LAWS RELATING TO COURTS. 


All laws relating to courts shall be general and of uniform operation 
throughout the state: and the organisation, jurisdiction, powers, proceedings 
and practice of all courts of the same class or grade, so far as regulated by 
law, shall be uniform. 


The wisdom of this provision is apparent when wc con¬ 
sider how much evil and injustice might result if the Leg¬ 
islative Assembly had the power to pass special laws rela¬ 
tive to any of the subjects enumerated above. 


[8:25-26] 


132 


CIVIL GOV^RNM^NT 


SECTION 27. 

TITLE OF PROCESSES. 

The style of all process shall be “The State of Montana,” and all prosecu¬ 
tions shall be conducted in the name and by the authority of the same. 

A process is a writ of whatever nature issuing out of a 
court or from a judge having power to issue same. Under 
this section all processes or writs must begin wdtli the 
words “The State of Montana/’ to which the following is 

generally added, “To.(naming 

the person or officer to whom the writ is addressed), 
Greeting.” All criminal prosecutions, of whatever nature, 
must also be carried on “in the name and by the authority 
of the State of Montana,” and all indictments and informa¬ 
tions usually conclude with these words: “Contrary to the 
form, force and effect of the statute in such cases made and 
provided, and against the peace and dignity of the State 
of Montana.” 

The purpose oj. all this is to secure uniformity in the 
titles of processes throughout the state, and to show that 
the state’s sovereign authority is behind every official action 
of the duly elected, acting and qualified officers of the law. 


SECTION 28. 

CIVIL ACTIONS. 

There shall be but one form of civil action, and law and equity may be 
administered in the same action. 

The term “civil action” includes all suits at law and in 
equity, except those of a criminal nature. Under the old 
common law there were many forms of civil actions, such 

[8:27-28] 



01^ MONTANA. 


133 


as assumpsit, debt, covenant, trespass on the case, trover, 
replevin, etc., and in no case could law and equity be ad¬ 
ministered by the same court and at the same time. This 
is now all changed under the code, which declares that 
there shall be but one form of civil action, and that law and 
equity may be administered by the same court and in the 
same action. Thus, we see that while under the common 
law a very great deal oh attention was paid to mere form, 
under .the code it is substance that is sought after, and 
justice is administered speedily and completely by one 
tribunal. The practice of law is much simplified by this, 
and many of the abuses arising from the arbitrary decisions 
of the common law courts done away with. 


SECTION 29. 

SALARIES OFJtJSTICES AND JUDGES. 


The justices of the Supreme Court and the judges of the District Courts 
shall be paid quarterly by the state, a salary, which shall not be increased or 
diminished during the terms for which they shall have been respectively 
elected. Until otherwise provided by law, the salary of the justices of the 
Supreme Court shall be four thousand dollars per annum each, and the salary 
of the judges of the District Courts shall be three thousand five hundred dol¬ 
lars per annum each. 

The salaries of justices of the Supreme Court and of 
judges of the District Courts have not as yet been changed 
by law, and hence they still remain as fixed by this section. 

The reason for providing that the salaries of none of 
these justices or judges shall be increased or diminished 
during their terms of office is to render them at all times 
entirely independent of the Legislative Assembly. 


[8:29] 


134 


CIVIL, GOVKRNMKNT 


SECTION 30. 

NO ADDTTEONAL FEES ALLOWED. 


No justice of the Supreme Court nor judge of the District Court shall 
accept or receive any compensation, fee, allowance, mileage, perquisite or 
emolument for or on account of his office in any form whatever, except the 
salary provided by law. 


The purpose of this is to take from every Supreme Court 
justice and every District Court judge all hope of ever in¬ 
creasing his income by delaying justice, or otherwise, for 
the purpose of enlarging his fee, allowance, mileage, or the 
like. 


SECTION 31. 

JUDICIAL OFFICERS SHALL NOT PRACTICE LAW. 


No justice or clerk of the Supreme Court, nor judge or clerk of any Dis¬ 
trict Court, shall act or practice as an attorney or counsellor at law in any 
court of this state during his continuance in office. 


The reason for this is obvious when we consider how 
much injustice might be done if a judge or justice was put 
in the position to try, or a clerk of any of these courts to 
have anything to do with, cases which he was interested in 
as an attorney or as a counsellor at law. 


[8:30-31] 


OF MONTANA. 


135 


SECTION 32. 

PUBLICATION OF SUPREME COURT DECISIONS. 


The Legislative Asseinbly ma)' provide for the publication of decisions 
and opinions of the Supreme Court. 


The pulilication of these decisions and opinions has long 
since been authorized by the Legislative Assembly. This 
IS so provided in order that they may be easily obtained 
for purposes of reference, for it will be remembered that 
such decisions are followed by the lower courts as to all 
local or state matters upon which they touch, and are con¬ 
sidered the highest authority relative to the constitution¬ 
ality or meaning of all state laws. 


SECTION 33. 

RESIDENCE OF JUDGES AND OTHERS. 


All oflficers provided for in this Article, excepting justices of the Supreme 
Court, who shall reside within the state, shall respectively reside during their 
term of office in the district, county, township, precinct, city or town for 
which they may be elected or appointed. 


To be compelled to seek a judge, justice of the peace or 
police judge outside of his district, township, city or town, 
or to seek a justice of the Supreme Court outside of the 
state, would be very inconvenient, and in many cases work 
irremediable injury to i)erson or property. Hence, to guard 
against this the foregoing section was inserted. 


22 


[8:32-331 


136 


civil, GOVE^RNMENT 


- SECTION 34. 

VACANCIES. 

Vacancies in the office of justice of the Supreme Court, or judge of the 
District Court, or clerk of the Supreme Court, shall be filled by appointment, 
by the Governor of the state, and vacancies in the offices of county attorneys, 
clerk of the District Court, and justices of the peace shall be filled by ap¬ 
pointment by the board of county commissioners of the county where such 
vacancy occurs. A person appointed to fill any such vacancy shall hold his 
office until the next general election and until his successor is elected and 
qualified. A person elected to fill a vacancy shall hold office until the expira¬ 
tion of the term for which the person he succeeds was elected. 


A vacancy in the office of justice of the Supreme Court 
or of judge of the District Court, or of a clerk of either of 
these courts, or of a justice of the peace or police judge, may 
occur by death, by resignation, by the removal of any of 
these officers from their respective districts, townships, 
cities or towns, or from the state; by their removal from 
office, by insanity, or by absence from the state for more 
than sixty days without leave of the Legislative Assembly, 
and the like. When such a vacancy occurs, the same may 
be filled by appointment as provided herein, and the ap¬ 
pointee holds office for the unexpired term only, and until 
his successor is elected and qualified. 

SECTION 35. 

JUDICIAL OFFICERS CANNOT HOLD MORE THAN ONE OFFICE. 

No justice of the'Supreme Court or district judge shall hold any other 
public office while he remains in the office to which he has been elected or 
appointed. 

This is SO provided in order that the minds of justices 
and judges may be kept as free as possible from all matters 
not relating solely to their purely judicial duties, under the 


MONTANA. 


137 


belief that if such is done they will be the more likely to 
judge justly and without bias. If a justice or judge accepts 
any other public office, such acceptance renders his justice¬ 
ship or judgeship vacant. 


SECTION 36. 

JUDGE PRO TEMPORE. 

A civil action in the District Court may be tried by a judge pro tempore, 
who must be a member 9! the bar of the state, agreed upon in writing by the 
parties litigant, or their attorneys of record, approved by the court, and 
sworn to try the cause; and in such case any order, judgment or decree, 
made or rendered therein by such judge pro tempore, shall have the same 
force and effect as if made or rendered by the court with the regular judge 
presiding. 


This means that if the parties to a civil action are not 
willing to have such action tried by the presiding judge of 
the district in which the same is brought, or their attorneys 
of record are not, but would rather have some other 
licensed attorney at the Montana bar try the case for them, 
they can do so by either entering into a mutual agreement 
ro that effect or have their attorneys of record do so for 
them. Such agreement, however, must be in writing and 
approved by the court before it can go into effect. When 
this is done, the attorney agreed upon, after being sworn 
to try the cause, has the same power in regard thereto, and 
any order, judgment or decree he may make therein has 
the same force and effect, as if made or rendered by the 
court with the regular judge presiding. It is very seldom 
that this is done, though a case may arise in which the 
right to do so might become very important. 


[8:36] 


138 


CIVIL GOVERNMENT 


SECTION 37. 

ABSENCE FROM THE STATE. 

Any judicial officer who shall absent himself from the state for more than 
sixty consecutive days shall be deemed to have forfeited his office. 

If the rule were otherwise a justice, judge, justice of the 
peace or police judge, even if he had his legal residence 
within the state, district, township, city or town for which 
he was elected, might seriously hamper or delay justice by 
remaining out of the state for a long period of time. Hence, 
it became necessary to fix upon some reasonable time limit 
in this respect, and with that end in vjew the above pro¬ 
vision was inserted. If any judicial officer of this state or 
of any of the municipalities thereof now absents himself 
for more than sixty days from the state his office is deemed 
vacated, and may be filled by the appointment or election of 
some other competent person. 


ARTICLE IX. 

RIGHT OF SUFFRAGE AND QUALIFICATIONS TO 
HOLD OFFICE. 

SECTION I. 

MANNER OF VOTING. 

All elections by the people shall be by ballot. 

The reason for requiring that the voting at all elections 
by the people shall be by ballot is because such manner of 
voting affords an opportunity for secrecy, and thereby tends 

[8:37:9:1] 



OF MONTANA. 


139 


to make the voter more independent. Under our present 
system of voting it is next thing to impossible to determine 
how a person votes, unless he himself chooses to give the 
secret away. 

SECTION 2. 

QUALIFICATIONS OF VOTERS. 

Every male person of the age of twenty-one years or over, possessing the 
following qualifications, shall be entitled to vote at all general elections and 
tor all officers that now are, or hereafter may be, elective by the people, and 
upon all questions which may be submitted to the vote of the people: first, he 
shall be a citizen of the United States; second, he shall have resided in this state 
one year immediately preceding the election at which he offers to vote, and 
in the county, town or precinct such time as may be prescribed by law; 
provided, first, that no person convicted of felony shall have the right to vote 
unless he has been pardoned; provided, second, that nothing herein contained 
shall be construed to deprive any person of the right to vote who has such 
right at the time of the adoption of this Constitution; provided, that after 
the expiration of five years from the time of the adoption of this Constitution 
no person except citizens of the United States shall have the right to vote. 

It will be remembered that the states, and not the na¬ 
tional government, have the right to say who shall and 
who shall not be given the privilege to vote within their 
respective borders. In the exercise of this right Montana has 
declared that only persons having the following five quali¬ 
fications shall be given the privilege of voting. First, they 
must be of the male sex. This shuts out women, except 
as provided under Sections 10 and 12, this Article. Second, 
they must be at least Hventy-one years of age or over. This 
shuts out children and minors. Third, they must be eiti- 
zens of the United States. This shuts out new comers from 
foreign countries until they have had sufficient time to be¬ 
come acquainted with our national institutions and govern¬ 
ment. Fourth, they must have resided in this state at least 
one year prior to the time they offer to vote. This shuts out 

[9:2] 


CIVIL, GOVERNMENT 


140 

new comers from other states until they have had sufficient 
time to become acquainted with our state institutions and 
laws. And, fifth, they must have resided in the county and 
precinct in which they offer to vote at least thirty days prior 
to the time of voting. This shuts out all transients who, 
though otherwise -qualified, yet because of their roving 
about from place to place, have no particular interest in the 
institutions and government of Montana or the political 
divisions thereof, and it also prevents persons from casting 
more than one ballot on the same day, by voting at two 
or more precincts. 

A person must have all of the above five qualifications 
before he can vote in this state, but all persons having these 
qualifications cannot vote. Thus, we see that persons con¬ 
victed of felony, unless they have been pardoned, on the 
ground of public policy cannot vote even if they are other¬ 
wise qualified ; neither can soldiers, sailors or marines of 
the United States army or navy stationed at any military or 
naval place within this state (Section 6, this Article) ; nor 
can idiots or persons of unsound mind (Section 8, this 
Article). 

That part of this Article beginning with “Provided, sec¬ 
ond,’^ is now obsolete and hence needs no comment. 

SECTION 3. 

GAINING OR I.OSING RESIDP^NCE. 

For the purpose of voting no persons shall be deemed to have gained or 
lost a residence by reason of his presence or absence while employed in the 
service of the United States, or of the state, nor while engaged in the naviga¬ 
tion of the state or the United States, nor while a student at any institution 
of learning, nor while kept at any alms house or other asylum at the public 
expense, nor while confined in any public prison. 

This means that no person a resident of this state shall, 
for the purpose of voting, lose his residence here because 

[9:3] 


MONTANA. 


I4I 

of his being absent from this state if he is employed in the 
military, naval or civil service of this state or of the United 
States, or is employed in navigating the waters of this state 
or of the United States, or is attending an institution of 
learning, or is being kept in any almshouse or other asylum 
at the public expense, or is confined in some public prison. 
Also, that no person a resident of some other state, for the 
purpose of voting, shall gain a residence in this state be¬ 
cause of his being employed in the service of the United 
States within her borders, or is employed in the navigation 
of the waters of this state, or is attending an institution of 
learning therein, or is kept or confined in one of the chari¬ 
table or penal institutions located within her borders. 


SECTION 4. 


VOTERS privileged FROM ARREST. 


Electors shall in all cases, except treason, felony or breach of the peace, 
be privileged from arrest during their attendance at elections and in going to 
and returning therefrom. 


This is to prevent evil-minded or evil-disposed persons 
from interfering with the free exercise ot the important 
privilege or right of the ballot, by trumping up some petty 
offiense against a voter, real or imaginary, and causing his 
arrest therefor before he has an opportunity to cast his 
ballot, in aid or furtherance of some sinister purpose or 
design. 


[9:4] 


142 


civil, gove:rnme:nt 


SECTION 5. 

WHEN VOTERS NEED NOT PERFORM MILITARY DUTY. 

No elector shall be obliged to perform military duty on the days of elec¬ 
tion, except in time of war or public danger. 

‘T'reedom is the freeman’s will,” and in order to secure 
to every voter the right and opportunity to express that 
will, even though he be performing military duty, except 
^vhen the public safety requires otherwise, the foregoing 
section was inserted. But voters may perform military 
duty on such days if they wish to do so. 

SECTION 6. 

PERSONS WHO CANNOT BECOME RESIDENTS. 

No soldier, seaman or marine in the army or navy of the United States 
shall be deemed a resident of this state in consequence of being stationed 
at any military or naval place within the same. 

This is so provided on the ground of public policy. 
Soldiers, sailors and marines in the service of the United 
States, although they may have the other qualifications, yet 
Iteing transients, have no interest in state governmental 
affairs, and hence should not be allowed to vote here. 

SECTION 7. 

QUAIJFICATTONS FOR OFFICE. 

No person shall be elected or appointed to any office in this state, civil or 
military, who is not a citizen of the United States, and who shall not have 
resided in this state at least one year next before his election or appointment. 

For the consideration of this section, see section 11, this 
Article, and the comments thereon. 


[9:5-6-7] 


OI^ MONTANA. 


143 


SECTION 8. 

PERSONS NON COMPOS MENTIS. 

No idiot or insane person shall be entitled to vote at any election in this 
state. 

Since persons non compos mentis are unable to take care 
of themselves,'it is plain that they should not be permitted 
to help govern others. Hence, to attain that end this pro¬ 
vision, that no idiot or insane person shall be allowed to 
exercise the right of suffrage in this state, was inserted. 

SECTION 9. ^ 

registration laws. 

The Legislative Assembly shall have the power to pass a registration ana 
such other laws as may be necessary to secure the purity of elections and 
guard against abiises of the elective franchise. 

A registration law is one which provides for the making 
out or preparing of a list of the voters in each registration 
district, voting precinct, county, city or town of the state,, 
a short time before election day, and the publication of the 
same for corrections. If an electors name is not on the 
list for his county, city, town or precinct, then he cannot 
vote at such election, unless he proves that he is a qualified 
voter. This is sometimes called “swearing in’^ one’s vote. 
Such a law has been passed by the Legislative Assembly, 
as have also laws regulating the manner of voting, the 
manner of counting and tabulating the votes, and of re¬ 
ceiving and canvassing the returns, etc. The purpose of 
all these laws is to prevent to as great an extent as possible 
people from voting who are not entitled to do so, and to 
prevent fraud in the counting and canvassing of the votes. 

[9: 8-91 



144 


Civile gove:rnme:nt 


SECTION 10. 

KLIGIEILITY OF WOMEN TO VOTE AND HOLD OFFICE. 

Women shall be eligible to hold the office of county superintendent of 
schools or any school district office, and shall have the right to vote at any 
school district election. 

Women, if otherwise qualified, are equally eligible with 
men in this state to hold the office of county superintendent 
of schools, but not that of State Superintendent of Public 
Instruction; also, the office of district school trustee, and 
of clerk of the board of district school trustees. If pos¬ 
sessed of the requisite qualifications, they may also vote at 
all school elections, but at no other time, except as pro¬ 
vided in section 12. The reason for permitting women to 
hold the offices enumerated above and to vote as provided 
in this section, at the same time that they are denied the 
right to hold any other office in this state or to vote at any 
other time or upon any other question (except as provided 
in section 12), is not quite clear, but we presume it is be¬ 
cause women were believed to take as much interest in 
school management and school affairs as men, while in the 
questions and affairs of government their interest and 
knowledge is a minus quantity, or nearly so. 

' " SECTION II. 

eligibility for office. 

Any person qualified to vote at general elections and for state officers in 
this state shall be eligible to any office therein, except as otherwise provided 
in this Constitution, and subject to such additional qualifications as may be 
prescribed by the Legislative Assembly for city offices and offices hereafter 
created. 

This section is remarkable rather for what it does not 
say than for what it does. It says that all persons qualified 
to vote at general elections and for state offices shall be 

[9:10-11] 


MONTANA. 


145 


eligible to hold any office in this state, except as otherwise 
provided in this Constitution (Article V., section 3; Article 
VIL, section 3; Article VIIL, sections 10, 16, 19, etc.) or 
by the Legislative Assembly in the case of municipal offices 
or offices that have been created since the adoption of this 
Constitution or which may hereafter be created, but it does 
not say that all persons not qualified to vote at general elec¬ 
tions shall be ineligible to hold any office in this state. 
Hence, under this section any person, of whatever sex or 
age, could hold any office in this state, unless the qualifica¬ 
tions for that office were specifically prescribed by the Con¬ 
stitution or by the Legislative Assembly, and this whether 
he or she was a citizen of the United States and a resident 
of this state or not. But in this connection. Section 7, the 
consideration of which we have deferred until this time, 
steps in and says that no person shall be elected or ap¬ 
pointed to any office in this state unless such person is a 
citizen of the United States and a resident of this state for 
at least one year next preceding his election or appoint¬ 
ment. This effectually bars out all persons not citizens of 
the United States and not residents of this state for the 
required time from holding any elective or appointive office 
in this state, but it does not bar out women nor does it bar 
out minors, though the latter are disqualified from holding 
office by legislative enactment. Hence, taking the Consti¬ 
tution and the law literally, it would seem that women, as 
well as men, can hold any office in this state, unless the 
qualifications for such office are specifically prescribed by 
this Constitution or by law. Luckily, the qualifications for 
all offices in this ^tate, except a few unimportant ones, are 
specifically prescribed in some manner or other, and for 
that reason it has thus far been unnecessary to bring this 
matter to the attention of the Supreme Court for final solu¬ 
tion, but should such ever be the case we believe that wo- 

[9:11] 


146 


CIVIL GOVERNMENT 


men, though otherwise qualified, would be held ineligible 
to hold office in this state, except as provided in the next 
preceding section, for the reason that to allow them to do 
so would be contrary to the spirit and intention of our Con¬ 
stitution and laws and against public policy. 

SECTION 12. 

QUESTIONS OF TAXATION. 

Upon all questions submitted to the vote of the tax-payers of this state, 
or any political division thereof, women who are tax-payers and possessed 
of the qualifications for the right of suffrage required of men by this Constitu¬ 
tion shall equally, with men, have the right to vote. 

This means that women, if they are tax-payers and have 
the other qualifications required of men by Section 2, shall 
lie permitted equally with men to vote on all questions sub¬ 
mitted to the tax-payers of this state only, or to those of 
any political division thereof, such as a county, city, town, 
school district, etc. This seems only just, for if a woman 
pays taxes she surely had ought to have the right to vote 
on all questions of "taxation equally with the male tax¬ 
payers. 


SECTION 13. 

t. 

A PLURALITY ELECTS. 

In all elections held by the people under this Constitution, the person or 
persons who shall receive the highest number of legal votes, shall be declared 
elected. 

This means that the candidate who receives the highest 
number of votes cast for any office in this state, whether 
this number be a majority of all votes cast for such office 
or not, shall be declared elected thereto. In other words, 
a plurality elects. If the rule were otherwise,—that a ma- 

[9;12-13] 


OF MONTANA. 


147 


jority only could elect,—then would election by a’ direct 
vote of the people fail in nearly every case, as but few can¬ 
didates for any office receive a majority when there are 
more than two in the field and aspiring' to the same. Such 
a condition of affairs would be very inconvenient to say the 
least, and might seriously hamper the carrying on of the 
business of government. Hence, the wisdom of the fore¬ 
going. 


ARTICLE X.* 

STATF INSTITUTIONS AND PUBLIC BUILDINGS. 

This article, so far as it now concerns us, simply pro¬ 
vides that the state shall establish and support, in such 
manner as may be prescribed by law, institutions for the 
benefit and care of the insane, the blind, the deaf and dumb, 
the old soldiers, the orphans, and for others who have 
claims upon the sympathy and aid of society; also, educa¬ 
tional, reformatory and penal institutions. 

In compliance with it the Legislative Assembly has 
established an insane asylum at Warm Springs, Deer 
Lodge county; a deaf and dumb asylum at Boulder, Jeffer- 


*The sections of this and of many of the succeeding articles are omitted, 
for the reason that their provisions are of no practical value or importance to 
any but lawyers and those entrusted with the administration of government. 
Besides, many of such provisions, to a more or less extent, are beyond the 
scope of a work of this nature, it being designed, not to take them into the 
minor details of state government, for we believe that such a course would 
not be of any material betterment to them, but to give the people generally 
a clear, correct and concise idea of our most important state and municipal 
political institutions, in order that they may be in a position to the more 
intelligently oversee, superintend and direct their proper administration. 
Therefore, we have contented ourselves by commenting briefly and to the 
point upon the most important parts of each of such articles. 


[Art. 10] 




148 


civil, gove^rnmknt 


son county; a state capitol building at Helena, Lewis & 
Clark county; a state orphans’ home at Twin Bridges, Mad¬ 
ison county; a soldiers’ home at Columbia Falls, Flathead 
county; state law, historical and circulating libraries, with 
headquarters at Helena, Lewis & Clark county; a state 
university at Missoula, Missoula county; a state school of 
mines at Butte, Silver Bow county; a state agricultural 
college at Bozeman, Gallatin county; a state normal school 
at Dillon, Beaverhead county; a state prison at Deer 
Lodge, Powell county; and a state reform school at Miles 
City, Custer county. Besides these, each county has a 
home for the poor and infirm. 

All of the above institutions, except those for educational 
purposes, are supported by appropriations from the state 
treasury, except those established by the counties, which 
are supported by appropriations from the treasuries of the 
counties in which they are situated. The state educational 
institutions are supported mainly from the income derived 
from the state agricultural college, university and normal 
school lands, the remainder being appropriated from the 
state treasury. The fund from which this income is derived 
can never be decreased, as it is made inviolable and is guar¬ 
anteed by the state, though it may be increased. 


ARTICLE XI. 

EDUCATION. 

Among other things, this article makes it the duty of the 
Legislative Assembly “to establish and maintain a general, 
thorough and uniform system of public, free common 
schools,” and the fact that Montana has one of the best 


[Art. ii] 



OF MONTANA. I49 

common school systems of any of the Western states dem¬ 
onstrates how fully the trust has been executed. 

The public schools are maintained or supported from 
two sources. The first of these is by direct taxation; the 
second is by the interest and rents accruing from the public 
school fund and from the public school lands of the state. The 
public school fund consists, first, of the proceeds arising 
from the sale of all public lands which have been or which 
hereafter may be granted to the state by the Federal gov¬ 
ernment for public school purposes; second, all unspecified 
grants of land or money made to the state by the general 
government; third, all grants of land or money made to the 
state by the Federal government for general educational 
purposes; fourth, all property that may escheat to the state 
because of the decease of its owner without a will and with¬ 
out heirs; fifth, all unclaimed shares or dividends of any 
corporation incorporated under the laws of this state; and, 
sixth, all other grants, gifts, devises or bequests made to 
the state by private individuals, associations or corpora¬ 
tions for educational purposes. The public school fund is 
under the control and direction of the State Board of Land 
Commissioners, consisting of the Governor, the Superinten¬ 
dent of Public Instruction, the Secretary of State and the 
Attorney General, and such board also has control and 
direction of all lands which have been granted for the sup¬ 
port of the state educational institutions mentioned in the 
last article. 

The public school fund is made inviolable by the Con¬ 
stitution ; that is, it cannot be decreased for any purpose 
whatever, though it may be increased by grant, gift, devise, 
or bequest. Only the interest and rents accruing therefrom 
yearly can be used for public school purposes, and this is 
apportioned to the several school districts of the state in 
proportion to the number of minors between the ages of 


[Art. II] 


50 


CIVIIv GOV^RNMF^NT 


six and twenty-one years, residing therein respectively. 
But no school district shall be entitled to its proportion of 
the money thus distributed unless it maintains a public free 
school for at least three months during the year in which 
distributions are to be made. The reason for this is self- 
evident. 

The teaching of the tenets of all sectarian institutions in 
any of the public schools or higher institutions of learning 
in our state is strictly forbidden, as is also the requiring of 
a sectarian or partisan qualification as a condition of ad¬ 
mission into any public educational institution in this state, 
either as teacher or pupil. This is so provided in order to 
forever guard against the many evils which have been 
proven by the experience of ages to invariably flow from 
mixing religion with politics and education. 

In short, the common schools of Montana are open and 
free to all persons between the ages of six and twenty-one 
years, and this without regard to the sex, race, nationality, 
religious belief or partisan opinions of such persons, and so 
are the higher state educational institutions to all those 
having the required educational qualifications for admis¬ 
sion. 

The common school system of the state is under the 
general supervision of the Superintendent of Public In¬ 
struction, who is elected at the same time and for the same 
term as the other state executive officers (Article VII., Sec¬ 
tion i). Under him are the county superintendents of 
schools, one in each county, who are elected for the same 
term and at the same time as other county officers (Article 
XVI), and who have general supervision over the schools 
and teachers in their respective counties. The local super¬ 
vision and management of the public schools is in the hands 
of the board of school trustees for each district, respec¬ 
tively. 


[Art. iij 


MONTANA. 


I5I 

The reason for the establishment of our common schools 
is because the bitter experience of the ages has taught us 
that “in knowledge there is power/’ and that the strength 
of every nation professing, like our own, to be builded upon 
the consent of the governed lies chiefly in the knowledge 
and education of her people. A nation, the people of which 
are ignorant and uneducated, is unfit for freedom, and the 
people thereof cannot long maintain it if given to them, 
as they are not in a position to intelligently express through 
the ballot-box the freeman’s will. On the other hand, a 
nation, the people of which are educated and familiar with 
the fundamental principles of government, will assert their 
freedom and maintain it, peaceably if they can, forcibly if 
they must, against the usurpation of demagogues, success¬ 
ful military commanders and trusts. Such a nation is our 
own. But the span of life is short, and we who today wield 
the sovereign’s scepter will soon be called to our last long 
sleep. With our departure would fade the splendor of our 
power, our freedom and our institutions, unless we had 
done our duty by posterity and brought them up in the 
ways of knowledge and understanding. Therefore, that 
such might be the case, the common schools have been 
established and are maintained at an enormous expense, 
though with the conviction that the end to be attained will 
justify the outlay many times over. 

“The common school, Oh! let its light 
Shine through our country’s story; 

Mere lies her health, her wealth, her might; 

Here rests her future glory.” ^ 


23 


[Art. 11 ] 


152 


CIVIL gove^rnmlnt 


ARTICLE XII. 

REVENUE AND TAXATION. 

Every government, whether it be municipal, state or 
national, as a condition to its very existence, must have the 
power of raising money in some manner for the purpose 
of defraying the expenses necessarily incurred in carrying 
on the same. A government without the power of taxation 
would be like a structure without a foundation, like a ship 
without a rudder floundering hopelessly in a tempest at sea. 
It would fall of its own weight, or if it existed it would be 
but a name and without power or means to enforce its will. 
Hence, in order that this might be avoided, the Legislative 
Assembly is given the power and directed by this Article to 
from time to time, as demanded by necessity, levy a uniform 
rate of assessment and taxation on all real and personal 
property found within this state, and not exempt from tax¬ 
ation, for the support and maintenance of the state. The 
Legislative Assembly is also given the power, and has 
exercised it, of imposing a license tax, both upon persons 
and corporations doing business in this state, and it has 
also imposed a poll tax on all voters residing within this 
state between the ages of twenty-one and sixty. But in all 
these cases the tax or license must be uniform throughout 
the state, and no discrimination must be made in favor of 
residents of this state and against the residents of other 
states. And the Legislative Assembly, although it is for¬ 
bidden to levy taxes upon the inhabitants or property in 
any county, town, city or municipal corporation of this 
state, for county, town or municipal purposes, yet it may 
and has by law vested in the corporate authorities thereof 
the power to levy, assess and collect taxes for such pur¬ 
poses. 

[Art. 12] 


MONTANA. 


153 


The only kind of taxes which the state or any of its muni¬ 
cipal corporations can levy, however, are direct taxes, and 
this whether such taxes are levied on persons or property, 
except that the state may levy indirect taxes for the pur¬ 
pose of defraying the expenses of enforcing its inspection 
laws only, unless Congress gives it power to levy indirect 
taxes for other purposes, which it has not done, nor is it 
likely so to do (United States Constitution, Article L, Section 
TO, Clause 2). But in no case can the municipal corpora¬ 
tions of this state levy indirect taxes for any purpose what¬ 
ever. 

All 'prciperty in this state, whether real or personal, is 
subject to these direct taxes, except the following, which, 
on the ground of public policy, is exempt: The property 
of the United States, the state, counties, cities, towns, 
school districts, public libraries, municipal corporations, 
such other property as is used exclusively for agricultural 
and horticultural societies or for educational purposes, 
places of actual religious worship, hospitals and places of 
burial not used for private or corporate profit, and institu¬ 
tions of purely public charity. But no more land than is 
necessary for such purposes is exempt in any case. 

We have seen that taxes must be uniform throughout the 
state and the municipal corporations thereof. In order 
that this may be brought about three things are necessary: 

First, that taxes should be levied on the same kinds of 
property throughout the state and the municipal corpora¬ 
tions thereof, and that the same kinds of property should 
likewise be exempt. Such is the case. 

Second, that the rate or percentage of taxation should be 
the same throughout the state for state purposes, and 
throughout the counties, cities, towns, school districts and 
municipal corporations thereof, for county, city, town. 


[Art. 12] 


154 


civil, GOVERNMENT 


school district and municipal purposes. Such is also the 
case. And, 

Third, that as taxes are levied on property according to 
the assessed valuation thereof, the value of all property 
subject to taxation should be assessed alike. This is done 
as near as may be, though it is impossible that it should 
ever be done perfectly, and in this respect our present taxa¬ 
tion system is at fault. 

' The value of all taxable property in the state is assessed 
by the county assessors of each county, respectively, ex¬ 
cept that in case a railroad operates in more than one 
county in this state the value of its franchise, road bed, road 
way, rails and rolling stock is assessed by the state board of 
equalization. An appeal lies in all cases from the assess¬ 
ment fixed by the county assessor to the board of county 
commissioners of such county, but its decision as to the 
assessable value of property is final and cannot be inquired 
into by the courts. As a general rule, taxes are collected 
for all purposes by the county treasurer of each county. 
Taxes constitute a lien on the property upon which they 
are levied, and if they are not paid at the proper time such 
property may be sold to satisfy them. 


ARTICLE XIII. 


PUBLIC INDEBTEDNESS. 

Under this Article, except in case of war, to suppress 
insurrection or repel invasion, the highest limit of indebt¬ 
edness that can be contracted by the state is $100,000, 
unless the law which seeks to increase its indebtedness over 


[Art. 13] 



MONTANA. 


155 


such amount has first been submitted to the people at a 
general election and carried by a majority vote. If such 
law, however, was not carried by a majority vote, then 
the same shall be void, as shall all bonds or obligations 
given by or on behalf of the state in excess of $100,000, 
except in the case hereinbefore mentioned. And the highest 
limit of indebtedness that any county in this state can con¬ 
tract is an amount equal to five per centum of the assessed 
value of the taxable property in such county, to be ascer¬ 
tained by the last assessment for state and county taxes 
previous to the incurring of such indebtedness, and no 
county can incur any Indebtedness for any single pur¬ 
pose in excess of $10,000, without the approval of a ma¬ 
jority of the electors thereof, voting at an election to be 
provided by law. Nor can any city, town, township or 
school district incur a greater indebtedness than an amount 
equal to three per centum of the value of the taxable prop¬ 
erty therein, to be ascertained as in the case of counties, 
except where an increase over such limit becomes necessary 
to construct a sewer system or to procure a supply of water 
for such municipality, the Legislative Assembly may au¬ 
thorize the question to be submitted to the tax-payers 
effected thereby. In all other cases, however, where an in¬ 
debtedness is incurred by any county, town, township, city, 
or school district, in excess of the limit allowed by law, the 
same shall be void. These provisions are very wise, for one 
of the greatest curses a state or any of its municipalities can 
leave to posterity is a heavy bonded debt. 

“The mortgaged states their grandsires’ wars regret, 

From age to age in everlasting debt.” 

—Johnson 

This article also wisely prohibits the state or any of its 
municipalities to give or loan their credit in aid of, or make 
any donation or grant by subsidy or otherwise to, any 

[Art. 13] 


156 


civil, govejrnmknt 


individual, association or corporation, or become a sub¬ 
scriber to, or a shareholder in, any company or corporation, 
or a joint owner with any person, company or corporation, 
except as to such ownership as may accrue to the state by 
operation of law. The foregoing was inserted as a result 
of the bitter experience of some of the older states in lend¬ 
ing their credit to, or becoming shareholders of, certain 
railroad and other corporations, which, because of misman¬ 
agement and final bankruptcy, either caused such states to 
lose all money they had invested in these concerns or else 
compelled them to pay that portion of their debts they had 
guaranteed. 


ARTICLE XIV. 

military affairs. 

The State of Montana has no standing army, nor can it 
maintain one in time of peace without the consent of Con¬ 
gress (United States Constitution, Article I., Section lo. 
Clause 2), and the Federal government as a general rule 
keeps but a very small standing army, thus avoiding the 
great evils that fall to the lot of those nations that do. Both 
the state and the nation depend upon their citizen-soldiery 
to protect them from invasion and to suppress insurrection. 
This citizen-soldiery is called the Militia, and consists, for 
national and state purposes, of all able-bodied male citizens 
of this state between the ages of eighteen and forty-five 
years, inclusive, except civil officers of this state and of the 
United States, who are exempt from military duty during 
the time they are in office. 


[Art. 14] 


OI^ MONTANA. 


157 


The Governor is commander-in-chief of the state militia, 
except when it is in the actual service of the United States, 
in which event the President is its commander-in-chief. 
And in time of war, though absent from the state, the Gov¬ 
ernor still remains commander-in-chief of all military forces 
of the state that still remain therein and are not in the actual 
service of the United States, if his absence is consented 
to by the Legislative Assembly in order that he may lead 
in person the military forces of this state in actual service. 

The Legislative Assembly has also authorized the organ¬ 
ization of a uniformed, active militia, to be made up vol¬ 
untarily from members of the enrolled militia, to be known 
as the National Guard of Montana. The object of this was 
to make at least a part of the militia acquainted with the 
army regulations of the United States, and to put them in 
a position to be called upon for actual service at a mo¬ 
ment’s notice, but thus far such laws have borne very little 
fruit, though the result had ought to be otherwise. 


ARTICLE XV. 

PRIVATE CORPORATIONS. 

A private corporation, as the term is used in this state, 
is construed to include all associations and joint stock com¬ 
panies having or exercising the powers or privileges of 
corporations not possessed by individuals or partnerships, 
and it may be defined to be, “a collection of many individ¬ 
uals unite*d in one body, under a special denomination, 
having perpetual succession under an artificial form, and 
vested by the policy of the law with the capacity of action, 

[Art. 15] 



158 


CIVIL, GOV^RNM^NT 


in several respects, as an individual, particularly of taking 
and granting property, of contracting obligations, and of 
suing and being sued by its corporate name, of enjoying 
privileges and immunities in common, and of exercising 
a variety of political rights more or less extensive, accord¬ 
ing to the design of its institution or the powers conferred 
upon it, either at the time of its creation or at any subse¬ 
quent period of its existence.” 

A private corporation may be either foreign or domestic. 
It is foreign if it is organized and chartered under the laws 
of some other state or of a foreign country. It is domestic 
if it is organized and chartered under the laws of this'state. 
Both foreign and domestic corporations, because of the 
enormous wealth at the command of many of them, are 
apt to become tyrannous and disregard the rights of the 
people if they are not hemmed in by wholesome and wise 
laws. The provisions of this Article, then, and of many 
legislative enactments supplemental thereto are designed 
to accomplish that commendable and worthy end. To 
enumerate such provisions fully, however, and comment 
upon the merits or demerits of each, would be entirely be¬ 
yond the scope of a work of this nature, and hence we have 
refrained from doing so. In conclusion, therefore, we will 
only say that the laws of Montana, taking them as a whole, 
relative to the control and management of private cor¬ 
porations, are above the ordinary, though there is still much 
latitude for improvement. 


[Art. 15] 


OF MONTANA. 


159 


ARTICLE XVI. 

MUNICIPAL CORPORATIONS AND OFFICERS. 

A municipal or public corporation is an incorporation of 
persons, inhabitants of a particular place or connected with 
a particular district within the state, for the purpose of 
enabling them to conduct its local civil government. It 
is simply an agent instituted by the state, or under its 
authority, for the purpose of aiding it in carrying out in 
detail the objects of government. For the state to directly 
supervise the minor details of civil government, such as 
constructing local highways, sewer systems, sidewalks and 
the like, would be very impracticable, to say the least, if not 
quite impossible. Besides, our people have an inherent 
love for local self-government, believing, and rightly, that 
all affairs that directly affect or pertain to a certain com¬ 
munity only, as the best means of disposing of them satisfac¬ 
torily, should be met and dealt with by the people of such 
community. Therefore, for these and many other reasons 
we have the state divided into counties, and the counties 
into cities, towns, organized townships and school districts, 
all of which are municipal or public corporations, and ex¬ 
ercise certain governmental powers within their respective 
limits, which powers are, directly or indirectly, delegated 
to them by the sovereign power of the State of -Montana. 

Of all of these public corporations the county is by far 
the most important. Counties are organized and their 
powers and boundaries defined directly by the Legislative 
Assembly. The administration of county affairs is in the 
hands of the board of county commissioners, which may 
in many respects be said to serve the same office to the 
county as the Legislative Assembly does to the state. This 
board consists of three members, one of which is the pre- 


[Art. 16] 


i6o civiiv gove:rnmj:nt 

siding officer and is styled the Chairman. They are elected 
for the term of four years. A vacancy in the personnel of 
the board is filled by appointment by the district judge of 
the district in which the county wherein such vacancy 
occurred is situated. Other administrative county officers 
are the following: County clerk, who is also clerk of the 
board of county commissioners and ex-officio county re¬ 
corder ; county treasurer, who is also collector of taxes; 
county assessor; county superintendent of schools; county 
surveyor; coroner; county auditor, in counties having an 
assessed valuation of not less than eight million dol¬ 
lars ; and public administrator. The executive officer 
of the county is the sheriff. All of these county 
officers, except the commissioners, are elected at the gen¬ 
eral election held on the first Tuesday after the first Monday 
of November in every even-numbered year, and serve for 
the term of two years, and until their successors are elected 
and qualified. County officers may succeed themselves in 
office as many terms as they can gain the election, except 
county treasurer, who cannot hold his office for more than 
two consecutive terms. 

Next in importance to the county comes the city and 
the town Cities and towns are organized or established 
and their boundaries defined by the board of county com¬ 
missioners of the county in which they are situated, but 
their powers are defined by the Legislative Assembly. 
Cities are divided into three classes. Cities of the first class 
are all those having a population of ten thousand or over; 
those of the second class are such as have a population of 
not less than five thousand nor more than ten thousand; 
those of the third class are such as have a population of 
not less than one thousand nor more than five thousand. 
Municipalities having a population of not less than three 
hundred nor more than one thousand are called towns. The 
principal officers of cities of the first class are a mayor, who 

[Art. i6] 


OF MONTANA. 


l6i 

is the chief executive officer; two aldermen from each 
ward, who taken together form the city council and con¬ 
stitute its legislative department; one police judge, who 
is its judicial officer; one city treasurer, who may be ex- 
officio tax collector and belongs to the executive depart¬ 
ment. These are all elected by the qualified voters, on the 
first Monday of April in each odd-numbered year, and hold 
their respective offices for two years, or until their suc¬ 
cessors are elected and qualified. Besides these, there may 
be appointed by the mayor, with the advice and consent 
of the council, one city clerk, one city attorney, one chief 
of police, and the like, all of which officers belong to the 
executive department. Cities of the second and third 
classes and towns also have three distinct departments of 
government, though the number of officers thereof are, of 
course, limited by necessity, and the manner of choosing 
them also varies. The mayor and aldermen, however, in 
all cases are elected directly by the people, as is the police 
judge and the city treasurer in cities of the second and third 
classes. 

Townships are also organized and their boundaries de¬ 
fined by the board of county commissioners of the county 
in which they are located, but no township can be organized 
except upon petition signed by at least fifty citizens resi¬ 
dent therein. The powers of an organized or civil town¬ 
ship are also prescribed by the Legislative Assembly, and 
the officers thereof are generally two justices of the peace, 
who are its judicial officers, and two constables who are 
its executive officers. Civil townships have no legislative 
officers. The student must not confound a civil township 
with a congressional township, as they are not at all the 
same, nor need their boundaries be similar. A civil town¬ 
ship is organized for governmental purposes, while a con¬ 
gressional township is formed by surveys made under the 

[Art. i6] 


i 62 


civil, GOV^RNM^NT 


laws of Congress, for the purpose of convenience in dis¬ 
posing of the public lands. 

School districts are organized and their boundaries de¬ 
fined by the county superintendent of schools of the county 
in which they are situated, upon petition, but if a county 
superintendent of schools refuses to organize a school dis¬ 
trict when legally petitioned so to do, an appeal lies to the 
board of county commissioners of such county. The offi¬ 
cers of a school district are three trustees generally, though 
in populous school districts their number may be increased 
to five and even to seven, and a clerk. The trustees are 
elected by the qualified voters of their respective districts 
on the first Saturday of April in eacn year, and hold office 
for the term of three years, one or more of their number 
going out of office every year. The clerk is appointed by 
the board of school trustees, and holds office at its pleasure. 
The powers of the board are prescribed by the Legislative 
Assembly. 


ARTICLE XVII. 

PUBLIC LANDS. 

This Article simply relates to the classification, leasing 
and sale of the public lands of the state. It is of no prac¬ 
tical importance to the student, and hence all comment 
thereon, as well as the sections thereof, are omitted. 


[Art. 17] 



MONTANA. 


163 


ARTICLE XVIII. 

LABOR. 


Under the provisions of this Article the Legislative As¬ 
sembly has established a Bureau of Agriculture, Labor and 
Industry, the chief executive officer of which is called the 
Commissioner of Labor and is appointed by the Governor 
with the consent of the Senate. This bureau performs, in 
many respects, much the same office to the state as the 
Department of Agriculture does to the United States. Un¬ 
der its direction, also, is the state census taken, during every 
tenth year, beginning with the year 1895. And it is also the 
duty of the commissioner of this bureau to conduct a public 
free employment agency, and to have supervision over all 
public free employment agencies as may be established by 
the common councils of any of the cities of this state. In 
addition, it is the duty of said commissioner to advertise 
far and near the salubrious climate and abundant resources 
of the state, and to encourage home-seekers and emigrants 
to settle within her borders. The office of the commis¬ 
sioner of this bureau is at the seat of government, at Hel¬ 
ena. 


[Art. 18] 


164 


CIVIIv GOVERNMENT 


ARTICLE XIX. 

MISCELLANEOUS SUBJECTS AND FUTURE AMEND¬ 
MENTS. 

SECTION I. 


OATH OF OFFICE. 

INTembcrs of tbe Legislative Assembly and all other officers, executive, 
ministerial or judicial, shall before they enter upon the duties of their re¬ 
spective offices, take and subscribe the following oath or affirmation, to-wit: 
“1 do solem.nly swear (or affirm) that I will support, protect and defend the 
Constitution of the United States, and the Constitution of the State of Mon¬ 
tana, and that I will discharge the duties of my office with fidelity; and that 
I have not paid or contributed, or promised to pay or contribute, either 
directly or indirectly, any money or other valuable thing to procure my 
nomination or election (or appointment), except for necessary and proper 
expenses expressly authorized by law; that 1 have not knowingly violated 
any election law of this state, or procured it to be done by others in my 
behalf; that I will not knowingly receive, directly or indirectly, any money 
or other valuable thing for the performance or non-performance of any act 
or duty pertaining to my office other than the compensation allowed by law. 
So help me God.” And no other oath, declaration or text shall be required 
as a qualification for any office of trust. 


.This oath is administered to those elected or appointed 
to office in this state, for the purpose of more indelibly 
impressing upon their minds the responsibility of the posi¬ 
tions they are about to fill. If an officer has conscientious 
scruples against taking an oath, such as have the Quakers 
and several other religious sects, he may affirm instead of 
swear. The oath of office may be taken before anyone 
having the power to administer oaths, such as judges, clerks 
of courts, notaries public, and the like. 


[19:1] 


t 


MONTANA. 165 

SECTION 2. 

LOTTERIES. 

The Legislative Assembly shall have no power to authorize lotteries or 
gifL enterprises for any. purpose, and shall pass laws to prohibit the sale of 
lottery or gift enterprise tickets in this state. 

A lottery is a scheme for the distribution of property 
or prizes by lot or chance, whether called a lottery, raffle, 
gift enterprise, or by whatever name the same may be 
known. l,otteries are prohibited in this state, as is also 
the selling of lottery tickets therein. Every person who 
contrives, prepares, sets up, proposes or draws any lottery, 
or who offers lottery tickets for sale or distribution in this 
state is guilty of a misdemeanor, and upon conviction 
thereof may be punished by imprisonment in the county 
jail not exceeding one year, or by fine not exceeding two 
thousand dollars, or both. 

SECTIONS 3 AND 4. 

HOMESTEADS, EXEMPTIONS, ETC. 

The Legislative Assembly shall enact suitable laws to prevent the destruc¬ 
tion by fire from any cause of the grasses and forests upon lands of the state 
or upon public lands of the public domain the control of which may be con¬ 
ferred by Congress upon this state, and to otherwise protect the same. 

The Legislative Assembly shall enact liberal homestead and exemption 
laws 

Under the last section the Legislative Assembly has 
passed very liberal homestead and exemption laws. After 
a declaration of homestead is made by the head of a family, 
all the lands described therein are exempt from execution, 
except for debts secured by mortgage, mechanics’, vendors’ 
or laborers’ liens, or by judgments secured and filed before 
the declaration was made. But a homestead, if without 


[19:2-3-4] 


civil/ govkrnme:nt 


166 

the boundaries of a city or town, cannot consist of more 
than one hundred and sixty acres, or if within such bound¬ 
aries, of more than one-fourth of an acre, and in neither case 
can the value of such homestead exceed the sum of twenty- 
five hundred dollars. The wearing apparel of the judgment 
debtor and family is also exempt, as is the necessary house¬ 
hold furniture, one horse, saddle and bridle, two cows and 
their calves, four hogs and fifty domestic fowls, etc. And 
in addition, the necessary tools and implements of hus¬ 
bandry to the farmer, and the necessary tools, etc., to the 
mechanic, miner or artisan are exempt from execution, as 
is the office furniture and libraries of professional men, and 
a great variety of other things, too numerous to mention. 

These exemptions are not given to shield debtors from 
the payment of their just debts, or through any sympathy 
for them. Instead, they rest only on public policy, and are 
given to save the community from the burden of support¬ 
ing, or aiding in the support of, such persons. The right 
to exemptions is purely personal and may be waived by a 
debtor at any time. 


SECTION 5. 

PERPETUITIES FORBIDDEN. 

No perpetuities shall be allowed, except for charitable purposes. 

A perpetuity is the settlement of property, or an interest 
therein, in such a manner that it will go in the succession 
prescribed without any power of alienation, beyond the 
period allowed by law, which in this state is for the life or 
lives of persons in being at the time such settlement is 
made. If the settlement is made for a longer period than 
that, it is void, unless it be for some charitable purpose. 

“Perpetuities are abhorred by the law. They make es- 


[19:5] 


MONTANA. 


167 


tates incapable of answering the ends of social commerce, 
and providing for the sudden contingencies of private life, 
for which property was first established.’’ 


SECTION 6. 

LOCATION OF COUNTY OFFICKS. 


All county ofiicers shall keep Iheir offices at the county seats of their 
respective counties. 

This is SO provided for the same reason that the state 
executive officers are required to keep their offices at the 
state seat of government (Article VII., section i). 


SECTION 7. 

DISPOSITION OF PUBLIC LANDS 


In the disposition of the public lands granted by the United States, to 
this state, reference shall always be given to actual settlers thereon, and the 
Legislative Assembly shall provide by law for carrying this section into effect. 

The purpose of this section is to encourage the perma¬ 
nent settlement of the public lands belonging to the state. 
Its provisions are founded on the basic principles of justice, 
and untold hardships have been thereby avoided in many 
instances. 


24 


[19:6-7] 


i68 


civil, GOVBJRNMKNT 


SECTION 8. 

CONvSTITUTIONAL CONVENTION. 

The Legislative Assembly may at any time, by a vote of two-thirds of the 
members elected to each house, submit to the electors of the state the ques¬ 
tion whether there shall be a convention to revise, alter or amend this Con¬ 
stitution; and if a majority of those voting on the question shall declare in 
favor of such convention, the Legislative Assembly shall at its next session 
provide for the calling thereof. The number of members of the convention 
shall be the same as that of the House of Representatives, and they shall 
be elected in the same manner, at the same places and in the same districts. 
The Legislative Assembly shall in the act calling the convention designate 
the day, hour and place of its meeting, fix the pay of its members and officers, 
and provide for the payment of the same, together with the necessary ex¬ 
penses of the convention. Before proceeding, the members shall take an oath 
to support the Constitution of the United States and of the State of Mon¬ 
tana, and to faithfully discharge, their duties as members of the convention. 
The qualifications of members shall be the same as of members of the Senate, 
and vacancies occuiring shall be filled in the manner provided for filling va¬ 
cancies in the Legislative Assembly. Said convention shall meet within 
three months after such election and prepare such revisions, alterations or 
amendments to the Constitution as may be deemed necessary, which shall 
be submitted to the electors for their ratification or rejection at an election ap¬ 
pointed by the convention for that purpose, not less than two nor more than 
six months after the adjournment thereof; and unless so submitted and ap¬ 
proved by a majority of the electors voting at the election, no such revision, 
alteration or amendment shall take effect. 


Tlie time may come, though this is not at all probable, 
when the people of Montana shall become dissatisfied with 
their Constitution, and wish to extensively revise, alter or 
amend same, or change same altogether. Should such ever 
be the case, the desired end could best be attained through 
the agency of a Constitutional Convention called for that 
express purpose, as the sixty-day limit during which the 
Legislative Assembly can sit (Article V., section 5) would 
not be long enough to permit it to propose extensive re¬ 
visions, alterations or amendments to the Constitution, and 
at the same time attend to its regular routine work and pass 


[19:8] 



01^ MONTANA. 


69 


all needed legislation. But where the desired revisions, 
alterations, amendments or changes are not extensive it 
would be the height of foolishness to call a Constitutional 
Convention, because of the enormous expense necessarily 
attached thereto, and hence in such cases the Legislative 
Assembly proposes the amendments, etc., directly, as we 
shall see when considering the next section. 

The manner or process of revising, altering, amending 
or changing the Constitution through the agency of a 
Constitutional Convention, and of calling the same, is as 
follows: 

If in the opinion of the Legislative Assembly a revision, 
amendment or change in the Constitution is necessary, it 
may by a two-thirds vote of all of the members elected to 
each house, not simply two-thirds of those present and vot¬ 
ing, submit to the qualified electors of the state the ques¬ 
tion whether there shall or shall not be a Constitutional 
Convention called for the purpose of proposing amend¬ 
ments, alterations or changes in the Constitution. If at the 
next general election succeeding the proposing of such 
question it receives in its favor a majority of all votes cast 
for and against same, the Legislative Assembly must, at 
Its next regular session, provide for the calling of such 
Constitutional Convention. The number of members of 
which the convention thus called shall consist shall be the 
same as that of the House of Representatives, and they shall 
be elected in the same manner, at the same places and in 
the same districts, but they shall have the same qualifica¬ 
tions as are required of members of*the state Senate (Art¬ 
icle V., section 3). In calling the convention, the Legis¬ 
lative Assembly must also designate the day on which the 
election of its members shall take place, as w^ell as the day, 
hour and place where such convention shall meet, which 
day, however, must be fixed within three months from the 


[19:8] 


civil, GOV£)RNM]SNT 


i;o 

time of holding such election; and In addition, the Legis¬ 
lative Assembly must in such call fix the pay of the mem¬ 
bers and officers of the convention, and provide for the 
payment of same, together with the necessary expenses. 
Vacancies in the convention are filled in the same manner 
as are vacancies occurring in the Legislative Assembly 
(Article V., section 45). Before the convention proceeds 
with its mission, its members must, however, take the usual 
oath of office. This convention, thus elected and called, 
must forthwith proceed to examine the Constitution care¬ 
fully, determine in what respects it is defective and propose 
such revisions, alterations, amendments or changes to the 
same as may be deemed necessary. These must then be 
submitted to the electors for their ratification or rejection, 
at an election appointed by the convention for that purpose, 
which election must be held in not less than two nor more 
than six months after such convention adjourns. If at such 
election any or all of such proposed alterations, revisions 
or amendments are approved by a majority of the electors 
voting thereon, then same shall take effect immediately 
after the result is proclaimed by the Governor, but if any 
or all of them do not receive a majority of the votes thus 
cast, then those that did not shall be void and ineffective. 

These provisions are very wise, for while they secure to 
the people the right to directly approve or reject all pro¬ 
posed amendments, alterations or changes in the funda¬ 
mental lav/ of the state, they at the same time afford suffi¬ 
cient time for the careful consideration of same, thus guard¬ 
ing against hasty action on the part of the people. 

Thus far no Constitutional Convention has been called 
under this section. The only amendment made to this 
Constitution was made in the manner prescri 1 )ed in the 
next succeeding section. 


[19:8] 




OF MONTANA. I/I 

It must be borne in mind in this connection, however, that 
all revisions, alterations, amendments or changes made to 
the Constitution of Montana must not be repugnant to 
the Constitution, laws, treaties and judicial decisions of 
the United States. If they are, they are void and can never 
take effect, although otherwise legally proposed and 
adopted. If this were otherwise, the sovereignty of the 
United States could not be maintained and the whole struc¬ 
tural work of national existence destroyed. 


SECTION 9. 

AMENDMENTS, HOW MADE. 

Amendments to this Constitution may be proposed in either house of the 
I egislative Assembly: and if the same .--'hall be voted for by two-thirds of 
the members elected to each house, such proposed amendments, together with 
the ayes and nays of each house thereon, shall be entered in full on their 
respective journals; and the Secretary of State shall cause the said amend¬ 
ment or amendments to be published in full in at least one newspaper in 
each county (if such there be) for three months previous to the next general 
election for members of the Legislative Assembly; and at said election the said 
amendment or amendments shall be submitted to the qualified electors of 
the state for their approval or rejection, and such as are approved by a jna- 
jority of those voting thereon, shall become part of the Constitution. Should 
more amendments than one be submitted at the same election, they shall 
be so prepared or distinguished by numbers or otherwise that each can be 
voted upon separately; provided, however, that not more than three amend¬ 
ments to this Constitution shall be submitted at the same election. 

When only slight or inextensive changes or amendments 
to the Constitution are desired, these can the best and most 
satisfactorily be brought about through the agencv of the 
Legislative Assembly itself, instead of through the agency 
of a Constitutional Convention. Hence, in order that this 
end may be attained and secured, the foregoing section was 
inserted. 


[19:9] 


72 


CIVIIy GOV^RNMEJNT 


The process or mode of amending" the Constitution 
through the Legislative Assembly is as follows, to-wit: 

Either house may propose an amendment, and if the 
same is voted for by not less than two-thirds of all the 
members elected to each house, it must be submitted to 
the people for approval or rejection at the next general 
election for members of the Legislative Assembly, but dur¬ 
ing at least three months next prior to the time it is thus 
submitted, it is the duty of the Secretary of State to cause 
same to be continuously published in at least one news¬ 
paper in each county, if any such there be, in order that 
an ample opportunity may be given the people to think 
over and discuss the same. Should such amendment, thus 
proposed and submitted, receive in its favor a majority of 
all votes cast for and against the same at such general 
election, it shall go into ef¥ect and become part of the 
Constitution immediately after the result is announced by 
the Governor by public proclamation; otherwise, it shall 
be entirely void. 

Should more than one amendment be submitted to the 
people at the same time, such amendments must be so ar¬ 
ranged on the ofificial ballot that each one can be voted 
upon separately. The reason for this is too apparent to 
need comment. But in no case can more than three pro¬ 
posed amendments be submitted by the Legislative As¬ 
sembly to the people at the same time. If necessity de¬ 
mands that more than such number be submitted, a Con¬ 
stitutional Convention, whose exclusive business it is to 
look into such matters, should be called. 

Thus far only one amendment has been adopted (see 
Article VIII., section 5), though several others have been 
proposed and lost. 


[19:9] 


Ot* MONTANA. 


173 


ARTICLE XX. 

CHANGE FROM T?|RRITORY TO STATE. 

The provisions of this Article were inserted to prevent 
confusion or inconvenience from the changing of the terri¬ 
torial form of government to that of the state. As they are 
now of but little more than historical value, we have re¬ 
frained from commenting thereon. 

[Art. 20] 




'1 



INDEX 


TO 

UNITED STATES CONSTITUTION. 

Abolition of Slavery. i8i 

Absent Members. 38 

Accounts, Government. 86 

Accused, Rights of.139, 171 

Adjournment of Congress.41, 125 

Admiralty Cases. 134 

Admission of States.:. 147 

Agriculture, Secretary of. 113 

Aliens . 57 

Alliances, State, Forbidden.. 89 

Ambassadors . 124 

Amendments, to Bills. 45 

To Constitution.154, 161 

Appellate Jurisdiction. 66, 188 

Appointing Power.119, 122 

Apportionment of Representation. 20, 183 

Appropriations . 86 

Arms, Right to Bear. 164 

Army, of States. 73 

Army, Regular. 70 

Articles of Confederation. 5-8 

Arrest, Privileged from. 43 

Assembly, Freedom of. 162 

Attainder, Bills of. 82, 89 

Attorney General. 113 

Ayes and Noes. 40 

Bail . 176 

Bankruptcy . 59 


175 






























176 INDEX TO UNITED STATES CONSTITUTION. " 

PAGE. 

Bill of Rights. 162-179 

Bills for Raising Revenue. 45 

Bills of Credit. 89 

Bills, How Become Laws. 46 

Bills, where May Originate. 45 

Borrow, Congress May. 54 

Cabinet, the. 116 

Capitation Tax. 20,84 

Captures . 69 

Census . 22 

Chief Justice. 130 

Circuit Court.65, 130 

Circuit Court of Appeals. 65, 130 

Citizenship . 57, 181 

Civil Action. 132 

Civil Service Reform. 121 

Classification of Senators. 28 

Coinage . 60,89 

Commander-in-Chief . iii 

Commerce, Regulation of. 55> 86 

Common Law.14,134,174 

Concurrent Resolutions. 49 

Confederacy, United States, Not a. 51, 143 

Congress, Powers of.. 49-80 

Composition of. 13 

Prohibitions Upon. 80-89 

Terms of... 17, 36 

Congressional Districts. 35 

Congressmen, Restraints on. 44 

Constitution, Objects of. 10-13 

Supremacy of. 157 

Consul . 114 

Continental Congress. 4-10 

Contracts, Obligation of. 89 

Convention, Constitutional. 8 

Controversies . 131 

Copyrights. 63 

Corruption of Blood. 82, 142 

Counsel for Accused. 171 









































INDEX TO UNITED STATES CONSTITUTION. 


PAGE. 

Counterfeiting. 6i 

Court of Claims. 66, 135 

Courts, U. S. 65, 129 

Court-Martial . 72 

Crimes, Trial of.139, 171, 174 

Criminals, Fugitive. . 146 

Criminals, Rights of. 171 

Debate, Freedom of. 43 

Debt, Public ..54, 156, 186 

Declaration of Independence. 4 191 

Declaring War.. 68 

Democracy . 2 

Departments, of Government. 9, 10 

Executive. 94-128 

Judicial .128-143 

Legislative. 13-94 

Direct Taxes. 20, 84 

District Courts. 66 

District of Columbia. 76 

Districts, Congressional. 35 

Duties . 5'-2,84 

Elections . 35 > 100 

Electors, Presidential. 97 

Voters . 17 

Eminent Domain, Right of. 170 

Enacting Clause. 10 

Equity, Cases in. 132 

Excises . 53 

Exclusive Powers of Congress. 76 

Executive Power, in Whom Vested. 96 

Executive Department. 94-128 

Exports, Duties on. 52, 84' 

Ex Post Facto Laws. 82,89 

Extradition of Criminals.ii 4 ) 14b 

Extra Sessions. 37> 124 

Felony. 66 

Fines, Excessive. 176 

Forbidden Laws. 80-94 

Foreign Coin. 6q 









































178 INDEX TO UNITED STATES CONSTITUTION. 

PAGE. 

Forfeiture of Estate. 82, 142 

Freedom of Conscierme. 162 

Of Assembly and Petition. 162 

Of Speech. 162 

Free Trade. 52 

Fugitive Criminals. 146 

Fugitive Slaves. 147 

Gerrymander. 35 

Government, Defined. i 

Why Established.'. 2 

Grand Jury. 167 

Great Seal. 114 

Guaranties to States. 152 

Habeas Corpus, Writ c f.... 81 

High Seas. 67 

House of Representatives. 16-25 

Immunities of Congressmen. 43 

Impeachment.24, 33, 127 

Implied Powers of Congress. 97 

Import Duties. 52 

Imposts ... 52 

Indians. 20 

Indictment. 168 

Insurrection .'. 73 

Interior, Secretary of. 113 

Department of.*. 115 

Internal Revenue. 52 

International Law. 67 

Joint Resolutions. 48 

Journal of Each House. 39 

Judges, Terms of and Salary. 130 

Judicial Departm<.nt.128-143 

Jurisdiction of Courts.66, 131, 138 

Jury, Grand. 167 

Petit.139, 168 

Trial by, When.139, 171, 174 

Justice, Department of. 115 

Law, Cases in. 132 

Due Process of. 17Q 









































INDEX TO UNITED STATES CONSTITUTION. 


179 


PAGE. 

The Supreme. 157 

Ivaws, How Made. 46 

Forbidden . 80-94 

Legal Tender. 60,89 

Legislative Department.;. 13-94 • 

Letters of Marque, etc. 69,89 

Message, President’s. 123 

Militia . 73, m 

Minister, Public. 114 

Money, Coin and Paper. 60 

National Supremacy. 157 

Nations, Law of. 67 

Natural Born Citizen. 57 

Naturalization. 56 

Navy. 71 

Department of. 115 

Secretary of. 113 

Negro Suffrage.'.183, 187 

Nobility, Titles of. 87,89 

Oath of Office.no, 158 

Office, no Religious Test for. 158 

Original Jurisdiction. 66-138 

Pardons .in, 116, 184 

Patents . 63 

Parliamentary Rules. 39 

People, Source of Power. 2 

Person, Security of. 167 

Petition, Right of. 162 

Petit Jury. i39, 168 

Piracy . 66 

Poll Tax. 21,84 

Postmaster General. 113 

Postoffice Department. 115 

Postoffices and Postroads. 62 

Powers of Congress. 49-80 

Of Each House Separately. 37 

Of Nation Limited. 49 i I 77 

Preamble. 10 

Present from Foreign States. 88 









































l8o INDEX TO UNITED STATES CONSTITUTION. 


PAGE. •’ 

Presentment. 168 

President, The— 

Election of. 100 

Powers and Duties of.111-127 

Qualifications of. 105 

Term of, and Salary. 96, 109 

President the, of Senate. 31 

President Pro Tempore.•. 32 

Presidential Electors. 97 

Privateers . 69 

Prizes. 69 

Prohibitions on Congress. 80-89 

On the States. 89-94 

Property, Security of. 167 

Protection of States. 152 

Protective Tariflf. 52 

Public Debt.54, 156, 186 

Publicity. 40 

Qualifications of President. 105 

Of Representatives. 18 

Of Senators. 30 

Of Vice President. 105 

Of Voters. 17 

Quartering Soldiers. 165 

Quorum. 38 

Ratification of Amendments. 154 

Of Constitution. 8,9 

Records, Congressional.>. 40 

State. 143 

Recognizing a Government... 124 

Reform, Civil Service. 121 

Regulation of Army and Navy. 72 

Of Coinage. 60, 89 

Of Commerce. 55,86 

Religious Test for Office. 158 

Removals from Office. 24, 33 

Representation, Basis of. 20, 183 







































INDEX TO UNITED STATES CONSTITUTION. 


l8l 


Representatives— page. 

Apportionment of. 20, 183 

How Chosen and Terms of. 16 

Number and Vacancies. 22, 23 

Qualifications of. 18 

Representatives, House of. ... i. 16 

Reprieves and Pardons. in, 116 

Republican Government. 2, 152 

Repudiation. 179 

Reserved Rights. 49, 177 

Resolutions, Concurrent. 49 

Joint . 48 

Restrictions on Commerce. 86 

On Congressmen. 44 

Returns, Election. 37 

Revenue. 51 

Rules of Each House. 39 

Salary.43, 109, 131 

Searches and Seizures. 166 

Senators, Classification of. 28 

How Chosen and Terms of. 25 

Qualifications of. 30 

Senate, The. :.... 25-35 

Vacancies in. 28 

Slavery. 80, 181 

Speaker of House. 24 

Speech, Freedom of. 162 

State, Department of. 113 

State Records. 143 

Repudiation. 179 

State, Secretary of. 113 

States, Commerce Between. 55,86 

Form of Governrjcnt. 152 

New, Admission c.f. 147 

Prohibitions on. 89-94 

Protection of, by U. S. 152 

Relations of..,.,. 145 

Succession to Presidency. 107 

Suffrage. i7> 187 








































i82 index to united states constitution. 


PAGE. 

Supremacy of Nation. 157 

Supreme Court. 129 

Tariff . 52 

Taxation . 20, 51 

Tender, Legal. 60 

Territories ... . . 150 

Titles of Nobility..^.. .. 87, 89 

Tonnage Duties. 91 

Treason, High...140-142 

Treasury, Department of. 114 

Secretary of. 113 

Treaties, How Made. 89,118 

Trial .. ...139, 171, 174 

Troops, Forbidden to States. 91 

U. S. Courts. 65, 129 

U. S., A Nation.ii, 51, 145 

Vacancies, in House. 23 

In Presidency. 107 

In Senate. 28 

Veto of President. 46 

Vice President. 31 

Election of... too 

Qualifications of.. .. 105 

Volunteers . 74 

Voters, Qualifications of. 17 

War, Department of. 114 

Forbidden to States. 91 

Power to Declare. 68 

Secretary of. 113 

Weights and Measures . 60 

Witness. 167 

Yeas and Nays. 40 


































INDEX 


TO 

MONTANA'CONSTITUTION AND CIVIL GOVERNMENT. 


Page. 

Accused, Rights of. 3i> 34 

Acting Governor. 82 

Adjournment . 58 

Administrators, Public. 160 

Agricultural College. 148 

Aliens, Rights of. 40 

Amendments to Bills. 67, 72 

To Constitution. 168-172 

Appointing Power. 94 

Apportionment .48,82-85 

Appropriations . 72-73 

Arms, Right to Bear. 27 

Arrest, Privilege from. 59 > Mi 

Assembly, Freedom of. 41 

Legislative . 45 

Assessor, County . 160 

Attainder, Bills of... 22 

Attorney General . 86, 91 

Auditor, State . 86, 91 

Authentication .106-107 

Ayes and Noes.'. 57 

Bail . 35 

Bill, All Laws by. 63 

Bills, Where Must Originate. 72 

How Become Laws. loi 

Boards, State . 88, 108 

Boundaries of State. 7 

How Changed . 7 

183 


25 































INDEX TO MONTANA. 


I 84 

Page. 

Bribery . 79 - 8 i 

Census, State . 83 

Certiorari, Writ of. 113 

Charitable Institutions . 147 

Cities . 160 

Civil Actions . 132 

Civil Townships . 161 

Clerk of Court, District. 125 

Supreme . 119 

Clerk and Recorder, County. 160 

Commander-in-Chief . 94 

Common Schools .148-151 

Contracts, The Obligation of. 25 

Conscience, 'Freedom of. 13 

Congressional Township . 161 

Commutation. 97 

Concurrent Jurisdiction.113-128 

. Resolutions . 78 

Constable . 161 

Contempt . 54 

Convocation of Assembly. 50 

Coroner . 160 

Corporations, Private . 157 

Public .159-162 

Council, City and Town. 161 

Counsel for Accused. 

Counties . 1^9 

County Attorney . 62, 125 

Auditor . 160 

Clerk and Recorder. 160 

County Commissioners. 159 

Superintendent . 160 

Surveyor . 160 

Treasurer . 

Courts, of State. no 

Criminal Action . 31 

Deaf and Dumb Asylum. 147 

Debt, Imprisonment for. 26 

Municrpal . 76, 155 

. 77 , 154 











































INDEX TO MONTANA. I 85 

Page. 

Declaration of Rights. 9-45 

Departments of Government. 45 

District Courts .110,120-125 

Divorces, by Legislature. 68 

Education .148-151 

Educational Institutions. 147 

Electors, Who Are.. 139 

Eminent Domain . 28, 29 

Error, Writ of.114, 123 

Escheats . 149 

Examiner, State . 96 

Executive, Chief. ' . 93 

Executive Department . 86-110 

Exemption Laws . 165 

Ex Post Facto Laws. 25 

Expulsion of Legislators. 54 

Extra Sessions . 50, 100 

Finance .154-156 

Fines, Excessive, Forbidden. 35 

Forfeiture of Estate. 23 

Freedom of ^Assembly. 41 

Of Religion . 13 

Of Speech . 23 

Government, State, Why Established. 3 

Governor, Powers and Duties of. 93-104 

Qualifications of. 91 

Salary of . 9 - 

Vacancies in Office of.104-106 

Great Seal of Montana. 106 

Habeas Corpus, Writ of.. 36, 112 

Highways . 28, 29 

House of Representatives. 45 

Impeachment . 60, 61 

Imprisonment for Crime. 43 

For Debt . 26 

Information . 20 

Indictment . 20 

Injunction, Writ of. 

Insane Asylum . ^47 









































INDEX TO MONTANA. 


i86 


Joint Resolution. 

Journal, Each House to Keep, 

Judges of District Court. 

Qualifications of.. 

Judge Pro Tempore. 

Judicial Department . 

Jurisdiction, Appellate . 

Concurrent . 

Original. 

Jury, Grand . 

Petit . 

Trial by . 

Justices of the Peace. 

Justices of the Supreme Court 

Qualifications of. 

Labor Commissioner . 

Law-Making . 

Law, Due Process of. 

Laws, Style of. 

How Passed . 

Publication of. 

Legislative Department . 

Legislative Assembly . 

Number of Members. 

Privileges of Members. ... 

Libel . 

Lieutenant Governor . 

Powers and Duties of. 

Qualifications of . 

Salary of . 

Lotteries, Forbidden . 

Mandamus, Writ of. 

Military Subordination. 

Militia . 

Mines, School of. 

iMiscellaneous Provisions . 

Montana, Admission of. 

Boundaries of .. 

jMunicipal Corporations . 


Page. 

64 

56 

122-124 

124 

137 

110-138 
.III, 129 
113, 128 
III, 120 
20 
20 
3L 38 
126-129 
116 
120 
163 
63-69 
42 

64 
67 

65 

45-82 

45 

47 

59 

23 

52, 86 
52, 105 

91 

92 

165 

112 

37 

94, 156 
148 
164-184 
3, 7 
7 

159-162 










































INDEX TO MONTANA. 


187 


Normal School, State. o 

Oath of Office.^ .. 164 

Objects of Constitution. 6 

Office, No Religious Test for. 13 

Officers, Judicial.110-120 

Legislative . ^3 

Municipal .160-161 

State . 86 

Pardoning Power . q7 

Penitentiary, State. 148 

Person, Security of. 17 

Permanent School Fund. 149 

Persons, Rights of. 12, 42 

People, Source of Power.i, 5, 10 

Petition, Right of. 41 

Police Courts . 130 

Preamble . 5 

President, of Senate. 52, 105 

Pro Tempore . 52, 106 

Privileges of Legislators. 59 

Printing, State .. 7 i 

Property, Security of. 17 

Public Institutions . I 47 

Publicity . 57 

Qualifications of Voters. 139 

Quartering Soldiers. 37 

Quorum . 53 

Quo Warranto, Writ of. 113 

Religious Freedom. 13 

Removal of Officers. 60-63 

Representatives, State . 45 

Reprieves . 97 

Rights, Conventional . ■ 13 

Reserved . 44 

Inherent . 13 

Restrictions on Legislators. 51 

Salary .... .49, 92, 133 

Schools, Common .148,151 








































i88 


INDEX TO MONTANA. 


School Board . 

District . 

I^und . 

Searches and Seizures.. . 

Secretary of State. 

Sectarian Instruction . .. 

Senate, State . 

Senators, State. 

Sessions, Regular . 

Special . 

Sheriff . 

Slavery Prohibited .... 

Speaker of House. 

Special Legislation . ... 

State Auditor . 

State University. 

Reform School . .. . 
Subordination, Military 
Succession to Governor 

Suffrage . 

Superintendent, State . . 

Supreme Court . 

Jurisdiction of .... 

Taxation . 

Terms of Court. 

Trial . 

Towns .. 

Townships . 

Treason . 

Treasurer, State . 

Vacancies . 

Venue, Change of. 

Veto . 

Voters, Who Are. 

War Debt. 

Water Rights . 

Writs .•.. 


Page. 

. I 5 P 

. 150 

. 149 

. 17 

. 86 

. 150 

. 45 

. 45 

. 50 

. 50, 100 

. 160 

. 43 

. 52, 106 

.25, 68, 131 

. 86 

. 148 

. 148 

. 37 

.105-106 

....15. 138-147 

. 86 

. no 

. Ill 

. 152-154 

... 115, 120, 129 
....... 31,38 

. 160 

. t6i 

. 22 

. 86 

81, 104-106, 136 

. 32 

. 101-103 

. 139 

. 154 

. 29 

. Ill 












































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